David Weinstein has 25 years of practice in criminal law and his courtroom experience includes more than 100 jury trials ranging from burglaries and homicides through international money laundering and drug trafficking cases.
ANALYSIS by Miami-based former federal prosecutor David Weinstein:
As a general principle, the prosecution presents their case as a story. They establish the elements of the proof required to prove the charges contained in the Information or Indictment beyond and to the inclusion of every reasonable doubt.
They usually tell the story in chronological order, mixing weaker but essential testimony in between stronger witnesses or evidence. Like any good presentation, they start strong and finish with a compelling witness.
During the pre-trial discovery process they are required to list the witnesses that they will or may call at trial, or who possess inculpatory or exculpatory information about the case.
The witnesses are broken down into three categories, A, B and C.
Category A witnesses are individuals who were eye witnesses, alibi witnesses, rebuttal to alibi witnesses, witnesses present during the statement of a defendant, investigating officers, witnesses who possess exculpatory information about the guilt of the defendant and certain categories of expert witnesses.
Category C witnesses are ministerial or their testimony is covered by other witnesses. They will not be called to testify at trial.
Category B witnesses are witnesses who don’t fit into Category A or C and who may or may not be called testify.
The prosecution is not obligated to call, nor will they call, all of the witnesses who are listed.
For example, if someone ran onto the court and shot a referee during the final Heat game, the prosecution isn’t obligated to call all 19,000 fans who were at the game to prove that the referee was shot or who shot him.
They will arguably have to list all of the fans as category A witnesses, because they were eyewitnesses.
They only need to call a sufficient number of witnesses who can help to prove the charges contained in the Information or Indictment beyond and to the inclusion of every reasonable doubt. There is no magic number.
The elements in this case that the prosecution is required to prove beyond and to the inclusion of every reasonable doubt are that:
Trayvon Martin is dead. That his death was caused by the criminal act of George Zimmerman, and that the unlawful killing of Trayvon Martin was caused by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.
Those are the elements of Second Degree Murder.
In addition to these statutory elements, within the Information filed against George Zimmerman, the prosecution has included several other allegations.
These additional allegations will enhance the penalty that can be imposed upon George Zimmerman (to include certain minimum mandatory term(s) of years) if he is convicted. These additional allegations will also allow the prosecution to request certain lesser included offenses as part of the jury instructions.
These additional allegations include the fact that:
Trayvon Martin was under the age of 18 at the time that he died. George Zimmerman carried, displayed, used, threatened to use, attempted to use, and did actually possess and discharge a firearm, and as a result of the discharge, death or great bodily harm was inflicted upon Trayvon Martin.
In addition to proving these elements, the prosecution will also try to preemptively defeat George Zimmerman’s claim of self defense.
Looking back over the past week’s testimony, thus far the prosecution has presented witnesses who arguably:
Place Zimmerman at the scene of the homicide, show that Zimmerman carried a firearm and show that Zimmerman committed an act that lead to severe injuries to Trayvon Martin.
Also show that Zimmerman discharged a handgun, that the act was imminently dangerous to another; that the act demonstrated a depraved mind (Zimmerman’s prior 911 calls, Rachel Jeantel’s comments about the encounter, the neighborhood watch and 911 personnel’s testimony); that the act was without regard for human life (firing a handgun at close range to another human being); and that as a result of the discharge great bodily harm was inflicted upon Trayvon Martin.
In addition to bolstering the elements about which they have already introduced evidence or testimony, the prosecution still needs to introduce testimony that:
Trayvon Martin is dead; that Trayvon Martin’s death was caused by a criminal act committed by George Zimmerman; that Trayvon Martin was under the age of 18, and that George Zimmerman discharged a firearm.
Some of the witnesses who we can expect to testify this week will be:
Additional civilians and, or Law Enforcement Officers to establish ill will, hatred, spite, and evidence of a criminal act -- one that was not performed in self defense.
Law enforcement witnesses are likely to introduce the defendant’s statements, and who will testify about gunshot residue, fingerprints, the safe operation of firearms, concealed weapons permits and ballistics.
Record custodians are likely to introduce Zimmerman’s concealed weapons permit. Also expect, the Medical Examiner, and one or both of Trayvon’s parents (to establish his age at the time of his death).
The defense will continue to use cross examination to establish reasonable doubt about ill will, hatred, spite, lack of a regard for human life, and to prove their theory of self defense.
They may try to prevent Trayvon’s parents from testifying, and adding sympathy to the prosecution’s case, by stipulating that Trayvon was under the age of 18 at the time that he died.
They may also stipulate to the fact that Trayvon is the victim in the case and about whom the medical examiner is testifying. A stipulation to these two facts, age of the victim and identity of the victim, will lessen the prosecution’s argument about why Trayvon’s parent’s testimony is still relevant.
Strategically, they would do this during the medical examiner’s testimony.
The upcoming week’s proceedings will be interrupted by the Fourth of July holiday, so the prosecution will need to plan accordingly and make sure to end the day with high value witnesses on both Wednesday and Friday.
Depending on how quickly cross examination goes during the week, we could be looking at a Saturday session if the prosecution’s case is close to winding down by the end of the week.