by Patrick H. Moore
As the George Zimmerman second-degree-murder trial grinds into its fourth week, it becomes increasingly clear that it will be a steep uphill climb for the prosecution to overcome Zimmerman’s claim of self-defense. The prosecution’s job just keeps getting tougher and tougher. During the first week of testimony, it was apparently unable to prove conclusively (or even inconclusively) that Zimmerman assaulted Trayvon Martin. But proving the second-degree-murder charge beyond a reasonable doubt is not all the prosecution needs to do. It must also prove that there is no “reasonable doubt” concerning whether Zimmerman acted in self-defense. In essence, all that Zimmerman has to do to defend himself against the second-degree-murder charge is to create a “reasonable doubt” as to whether he acted in self-defense.
This issue — although given short shrift by many commentators — has been the “elephant in the room” right from the start of this case as Florida Special Prosecutor Angela Corey made abundantly clear at the news conference at which she stated that George Zimmerman was being charged with second-degree-murder. Professor Will Huhn unpacks this somewhat tricky legal issue skillfully in an article entitled “Zimmerman’s Low Burden of Proof on the Issue of Self Defense”, which appeared in Criminal Law on April 13, 2012. Professor Huhn states quoting Special Prosecutor Corey:
Florida Special Prosecutor Angela Corey mentioned several times that self-defense is an “affirmative defense” under Florida law. She also said that “Stand Your Ground” is “a tough affirmative defense to overcome.” It will be “tough” for the prosecution because although Zimmerman has to introduce some evidence that he acted in self-defense, that doesn’t mean that he has to convince the jury that he acted in self-defense. All he has to do is to create a ”reasonable doubt” as to whether he acted in self-defense. A proposed amendment to the Florida Jury Instructions makes that perfectly clear.
The controlling Florida case in this matter is Murray v. State, 937 So.2d 277, 279 (Fla. 4th Dist. 2006), in which the Fourth District Court of Appeal in Florida ruled that when a defendant in a criminal case introduces proof that he acted in self-defense, the jury must consider the defense, and the jury “may not convict the defendant unless it finds beyond a reasonable doubt that he did not act in self-defense.” The Fourth District Court of Appeal stated with respect to the defendant’s burden of proof:
No, he did not have to prove self-defense beyond a reasonable doubt. He did not have to prove even that his additional facts were more likely true than not. The real nature of his burden concerning his defense of justification is that his evidence of additional facts need merely leave the jury with a reasonable doubt about whether he was justified in using deadly force. Hence, if he wanted his self-defense to be considered, it was necessary to present evidence that his justification might be true. It would then be up to the jury to decide whether his evidence produced a reasonable doubt about his claim of self-defense.
Last year the Fifth District Court of Appeal quoted this language from Murray and followed the same rule in the case of Montijo v. State, 61 So.3d 424 (Fla. 5th Dist, 2011). In Montijo the trial judge had given the jury the wrong instructions: that the defendant had the burden of proving that he acted in self-defense “beyond a reasonable doubt.” The appellate court ruled that the trial judge had committed a “fundamental error” by giving that instruction and ordered a new trial. The Fifth District Court of Appeal stated:
The inclusion of the phrase beyond a reasonable doubt in the jury instruction placed the burden upon Montijo to prove self-defense, depriving him of a fair trial and rising to the level of fundamental error. Accordingly, we reverse.
It is important to note that Seminole County, where Trayvon Martin was killed, is in the Fifth Appellate District, so the rule in Montijo is controlling unless and until the law is changed.
Florida Standard Jury Instructions online are in accord with the courts’ rulings in Murray and Montijo. Instruction 3.6(f) states:
If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.
The essence of this somewhat dense legal language is that “Zimmerman cannot be convicted of murder or manslaughter unless the evidence shows beyond a reasonable doubt that he did not act in self-defense.”
This leaves the prosecution with a seemingly insurmountable problem: How in the world can it prove — given the inconclusive nature of the evidence — that Zimmerman “did not act in self-defense?” I am curious to see how the Zimmerman team introduces his claim of self-defense and whether it will do so without having him take the stand.
Click here to read our previous posts on the George Zimmerman trial:
George Zimmerman Unlikely to Be Convicted of 2nd-Degree Murder
George Zimmerman Trial: Top Five Moments in First Week of Testimony
George Zimmerman Trial: John Good’s Testimony Is “Good News” for Zimmerman
George Zimmerman Trial: Key State Witness Rachel Jeantel Goes Toe-to-Toe with Zimmerman Defense Team
George Zimmerman Was on a Dangerous Drug Cocktail at Time of Trayvon Martin’s Shooting Death
George Zimmerman Trial: Trayvon Martin Death Photos Dominate Day 12