The surveillance video that was recently released by the Sanford Police Department showing Zimmerman in handcuffs without visible blood on his shirt, face, nose or head has caused most objective observers of this controversy to begin to doubt Zimmerman. In fact the video reveals no visible injury to his person. Yet this is not the issue and Zimmerman, even with the release of this video, still has a strong defense.
The applicable Florida Statute 776.013(3) states:
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
Two essential issues in this case will determine if Zimmerman can assert the Stand Your Ground defense in his favor. The first issue is whether Trayvon presented an imminent threat of great bodily harm or death to Zimmerman when Zimmerman shot Trayvon. And if so, whether Zimmerman was engaged in an unlawful activity when Trayvon presented an imminent threat of great bodily harm or death to his person. These two issues, answered in the affirmative in the former and in the negative in the latter, will determine the outcome of the case.
In addition to those two essential issues, Florida Statute 776.032(1) creates immunity from criminal prosecution and civil action for use of force asserted under the Stand Your Ground defense. Subsection (2) of that same title prohibits agencies (law enforcement) from arresting the person for using deadly force unless it determines that there is probable cause that the force that was used was unlawful. Essentially, absent probable cause, Zimmerman cannot be arrested until there is a pre-trial evidentiary hearing on his claim of self-defense. Arrest includes detention, charging, or prosecution of Zimmerman.
Florida statute 776.032 authorizes the immunity determination or pre-trail evidentiary hearing to be made by law enforcement officers, prosecutors, judges, and juries. At this hearing, Zimmerman has the burden of proof to prove that force was necessary by the “preponderance of the evidence;” and the trier’s ruling at this hearing must be supported by competent substantial evidence. The preponderance of the evidence standard is a lower standard than the criminal standard of “reasonable doubt.” Thus, Zimmerman will be afforded immunity if it is probable that he feared an imminent threat of great bodily harm or death.
Nevertheless, if Zimmerman’s use of deadly force during the exchange with Trayvon is determined by competent substantial evidence to be excessive, or his actions were unlawful, or if it is determined that Zimmerman provoked the attack he will lose the statute’s immunities. Moreover, even if it was determined that Trayvon presented an imminent threat of great bodily harm or death and he (Trayvon) suddenly retreated the statute will still allow for immunity.
This case is not as cut and dry as it may seem. It is very likely Zimmerman will squeak out of the grand jury hearing without a writ to proceed to trial. The Stand Your Ground law has a loophole, a loophole this article will not attempt to reveal, a legal exception Zimmerman’s defense team is sure to exploit. Zimmerman has the upper hand and his defense team has already begun to try its defense in the wind.
To close the article, I would like to note that Zimmerman’s legal defense team is well aware that all statements made on behalf of him are inadmissible hearsay. Because the grand jury hearing has been already set for April 10th, it will make good legal sense for Trayvon’s attorneys to be silent concerning the evidence or its proposed line of attack as it will allow the defense to formulate an airtight defense. This is only the beginning.
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