And then you will discount the answers you don’t like, and, voila, you’ll have the truth!
And this conclusion is wrong, as a matter of law. I’ve quoted a relevant passage a couple of times. Here’s some of it again:
TOTALITY OF THE CIRCUMSTANCES.
Zimmerman’s story is not irrelevant. It is part of the TOTALITY OF CIRCUMSTANCES.
Is the word totality confusing you?
And I’m not sure what history of violence is being talked about. Apparently there was an incident in which either the charges were dropped or even saw it reported as expunged. An expungement means it never happened officially. If it was dropped, innocent until proven guilty. A conviction may be used to show a pattern but it would have to be extraordinary circumstances for something like that to be brought up legally.
Um, actually, I’m going to disagree with that. Prior bad acts are inadmissible to show that the accused acted in conformity therewith, but are admissible for other reasons, and are available to buttress (but not independently establish) probable cause, much like hearsay – inadmissible at trial but allowable for probable cause.
However, an expunged charge doesn’t qualify. That’s a legal finding that the charge simply should not have happened in the first place. An expunged charge is not a prior bad act within the meaning of 404(b)..
Correct. A prior bad act must generally be a conviction, or a judicial finding that would support a conviction, such as a deferred judgment or probation before judgment.
If, on one hand, we have a kid with no arrest record, no documented history of violent behavior, no persons stepping forward to say they’d had problems with him keeping his hands to himself…
…and on the other hand, we have a guy who has gotten into it previously with police (even though the charge was dropped, okay), and several nieghbors who have come forward with claims he has overstepped bounds in his duties as a watchman in the past…
At what point is it reasonable to look at this–plus the fact that the kid was unarmed, plus the size differential between the two actors–and say, “Gee, perhaps we shouldn’t believe what Zimmerman says just because he manages to keep a straight face and has earnestness in his big brown eyes.” Never mind the 911 call that shows Zimmerman targeted the kid because of his race. Even if we pretend this pretty damning piece of evidence doesn’t exist, there’s no rational reason why Zimmerman’s past shouldn’t tip the cops’ assessment of probable cause in Martin’s favor.
I only saw the word “expunged” in one report. It could very well be that the reporter didn’t know it had a specific meaning. If it was expunged I have a feeling it was leaked to the press by someone inside the department. Where I work when there is an expungement someone goes into every report and physically removes the name in every place. Its as if it never happened. We have no way of searching old reports for a name that was expunged. If in fact the charges were only dropped, those reports would still be public record. But still not admissible.
Where in that snippet is “subjective judgement” and “feelings” mentioned?
Probable cause has to be articulated. He was not convicted of anything that I know of. You are going back into feelings. If he has a history of over stepping his bounds and being overly aggressive in similar circumstances in the past, I would say that can be used as a part of probable cause. I have not read every article. But the ones I have seen that mention neighbors coming forward and talking about his prior actions state that those reports were from anonymous sources. It is unknown if those sources talked to the police. Anonymous complaints are not admissible. But again its not about feelings. I can’t go to a judge and say “I think he’s lying, I need a warrant.” I have to show proof. Like he said the gun went off when they were both struggling with it but the autopsy showed he was 3 feet away. All the news reports make me think this guy is a total asshole. Being an asshole is not probable cause.
According to the Huffington Post, these records exist.
Again I want to point out this has nothing to do with my feelings about the incident. Since I am refuting some notions of those outraged it might seem like I think Zimmerman did nothing wrong. Nothing could be further from the truth. In my jurisdiction, making assumptions with the information available, I think I could have filed manslaughter charges on the guy. I’m not confident that I could get a conviction. But I live in a state in which it is nearly impossible to get a concealed carry permit and the manslaughter statute is written differently. I hope enough can be found to convict this guy. But in circumstances where there are no witnesses and little physical evidence, that is not always possible.
But apparently, in the world according to Martin Hyde, you can go to the judge and say “I think he’s telling the truth, let’s not arrest him.”
Do you think this is appropriate?
Here’s an article full of anonymous sources that says expunged. Even if it is Florida allows expunged records to be accessible, legally it means it never happened. If the charges were simply dropped and not expunged, he is still innocent until proven guilty. Expunged or dropped, still can’t be used.
Since that is not what he said I don’t know how to answer that. It has more to do with if his statement matched the evidence at the scene and there was nothing to refute it. Not a matter of feelings. Its a matter of proof. By evidence I assume probably the autopsy which could confirm where the gun was, possibly if both were struggling for the gun, how close they were, injuries to the knuckles due to striking, things like that. Since I don’t know whats in the autopsy I can only guess. If the autopsy showed inconsistencies with his statement there would be a different outcome.
It depends on a couple of factors, such as the skill of the cross-examiner and the rest of the witness’s testimony.
If the witness has good general recall of all the events, except in key areas that count against him, a good cross-examiner can bring that out. It’s not “disproving” the “I can’t recall”, but it can cast serious doubt on the witness’s credibility. I’ve seen judgments where the trial judge comments on this sort of issue and uses it to make unfavourable findings of credibility against the witness, who is trying to avoid answer a question by falling back on an alleged lack of recall.
However, if the witness is generally vague throughout his testimony, it’s very difficult to shake the “I don’t recall.” I saw one fellow on trial for murder, and his story was that he had done it in an extremely emotional mental state - that he didn’t recall very much of what happened that day, after a particular point. The Crown prosecutor did his best to challenge him on that, but if the witness is consistently vague, it can be very hard. The Crown in this case didn’t make much headway with the accused, because his vagueness was consistent throughout his testimony, covering a period when he was objectively going through a very stressful episode. The lack of recall was frustrating, but not inherently unbelievable, unlike the witness who has a clear recollection of all the points that help his case, but gets fuzzy on areas that could hurt his case.
I’m sorry, is it your belief that had Zimmerman been arrested on this evidence, there would have been a Fourth Amendment violation?
There absolutely is probable cause (in short, the confessed shooting) in this case to arrest. There is no need to refute, as the police chief seems to believe, the accused’s allegation of self-defense.
Probable cause only goes to probable cause that a crime may have been committed. It is not certainty that a crime has been comitted nor is it certainty, or even firm belief, that the accused has no defenses to raise.
It does happen that the police have discretion as to when they act on probable cause. And that is what is so curious here: normally the cops aren’t all that gun-shy about arresting confessed shooters, even if they raise self-defense. And if they don’t, the cops are usually prepapred at least to tell the public why (sheriffs are elected, after all, and police chiefs tend to report directly to elected officials). That hasn’t happened here.
I’m not sure we’re disagreeing, Bricker - I said that by themselves, prior bad acts can’t be relied for probable cause; they’re a factor for the police to consider, and could be used to support a conclusion of probable cause, but with the concern that they likely cannot be introduced into court at trial.
You have said that several times. Each time Martin has posted cites. I’ll let him do so again if he feels like wasting his time.
The cites that Martin Hyde say nothing at all about probable cause. I suspect the two of you might be a little confused about the issue.
Perhaps you’d be more convinced by hearing this from someone on your own side: Bricker, if Zimmerman were arrested on the evidence known to us, would there be a Fourth Amendment violation? That is to say, do the police, if they know what we know, lack probable cause to arrest?
In my world police don’t go to the judge and do that. It’s a judgment call of the police as to whether to pursue an arrest, it isn’t black and white. It’s based on the situation, personal opinion (based on professional experience and training) and the evidence and statements taken. Why would you go to a judge to tell them you aren’t arresting someone?