THE BLOG
07/10/2013 03:51 pm ET | Updated Sep 09, 2013

Prosecution's Biggest Mistake in Zimmerman Trial

As the Zimmerman trial is ending, and observers and pundits start predicting the result, one significant question stands out, unanswered and elusive. Why did the prosecution decide to introduce in its own case the several audio and video statements made by George Zimmerman to the police after he shot and killed Trayvon Martin? Clearly, these statements could not have been admitted by the defense. The statements are hearsay and under one of the most firmly established rules of evidence, are not admissible if offered by the defense. The only way Zimmerman's statements could have been introduced into evidence and considered by the jury is if the prosecution somehow opened the door to allow the defense to use them, or to introduce the statements itself, the same way that prosecutors typically introduce a defendant's confession, or other incriminating statements, as an exception to the rule against hearsay.

To be sure, Zimmerman's lawyer more than a year ago released to the media Zimmerman's audio and video statements to the media, which described Zimmerman's narrative of his encounter with Martin, and essentially forms the basis for Zimmerman's claim of self-defense. But the truthfulness of Zimmerman's account of the event, and Zimmerman's credibility, has never been directly challenged by the greatest technique in our legal system to get at the truth -- cross-examination. Thus, in allowing Zimmerman's statements to be heard by the jury, and his demeanor seen by the jury, without being able to confront and cross-examine him in court, the prosecution made its biggest mistake in the trial.

Zimmerman's statements to the police lay the groundwork for self-defense. They contain numerous self-serving references to previous break-ins and the need to start a watch program in the neighborhood, how Martin fled to a darkened area and disappeared between houses, how Zimmerman dropped his phone, got punched in the face by Martin, had his head slammed into the concrete sidewalk, felt like his head was "going to explode," shouted for help several times, was told by Martin, "You're gonna die tonight, mother[expletive]," was terrified, and prayed to God that someone videotaped his encounter with Martin. Zimmerman's demeanor on the video is calm, polite, willing, and non-confrontational.

The prosecution's case without Zimmerman's statements is legally sufficient for a jury to convict, if not murder, then arguably manslaughter. Its case consists of Zimmerman's apparent targeting and profiling of Martin, pursuing Martin while uttering expletives, continuing to pursue Martin after Zimmerman was directed by a police operator not to do so, and Martin, sounding fearful, telling his girlfriend over the phone that he was being pursued by a "creepy" man, then Martin crying for help and shouting "Get off, get off," and during an ensuing struggle being shot and killed by Zimmerman. Witnesses observed portions of a struggle, and in differing and sometimes contradictory accounts provided some circumstantial evidence supporting or refuting Zimmerman's claim of self defense. But absent Zimmerman's statements to the police, it would have been far more difficult for the defense to prove that Zimmerman was justified in killing Martin, an unarmed young man who was returning home from the store when he was killed by Zimmerman.

It is hard to quantify what the prosecution gained by introducing Zimmerman's statements. To be sure, the prosecution was able to point out several discrepancies in Zimmerman's accounts, but these were really minor inconsistencies. But by introducing Zimmerman's statements, the prosecution paid a steep price. As noted above, it forfeited any opportunity to cross-examine Zimmerman because Zimmerman would not now have to testify to make out his claim of self-defense; his un-cross-examined statements did that. Moreover, without Zimmerman's statements that he cried for help, it would have been much less likely that the voice on the 911 audio recording screaming for help could be attributed to Zimmerman. Moreover, his statements laid the groundwork for the testimony of the forensic pathologist that Martin's injuries were consistent with Zimmerman's account of the shooting.

It would have been interesting, assuming the prosecution chose not to introduce Zimmerman's statements, to speculate on whether the defense would have chosen to call Zimmerman to testify in his own defense. Assuming he testified, and gave testimony similar to his statements to the police, his credibility could now be attacked: Didn't he lie before to the court? What was it about Martin that made him "suspicious"? What other persons in the neighborhood did Zimmerman deem "suspicious"? What made him leave his car? He knew he was armed with a gun, didn't he? Did he think he might need to use it? What made him decide to follow Martin? Why did he not heed the police directive not to pursue Martin? What made him feel so threatened? Did he really yell for help? At what point did he draw his gun? How serious were his injuries? Describe with a bit more detail how Martin kept bashing his head into the concrete? Did he lose consciousness? Go to the hospital?

On balance, the prosecution seems to have made a tactical blunder in allowing the jury to consider Zimmerman's account, and the evidentiary benefits this gave to the defense, particularly in forfeiting any opportunity to confront Zimmerman directly, face-to-face, to attempt to undermine story.