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Over Easy: On the Immunity Hearing

Good morning and welcome to Over Easy. Yesterday George Zimmerman appeared in Court and waived his right to a pretrial immunity hearing. Mr. Zimmerman is charged with second-degree murder in connection with the shooting death of Trayvon Martin, during an encounter last year in Florida. Mr. Zimmerman, who admits that he shot Martin, claims that he did so in self-defense. He is entitled to pursue both a pretrial hearing outside of a jury’s presence as well as a jury trial.

This article is cross-posted from with permission, and it addresses issues of concern with George Zimmerman pursuing what is ordinarily a pretrial hearing, during the jury trial, as a potential defense strategy.

Zimmerman: The immunity hearing should not be combined with the trial

Tuesday, April 30, 2013

Good evening:

The immunity hearing should not be combined with the trial for the following reasons:

A defendant has a 5th Amendment right to remain silent throughout the trial. If the Court were to combine the trial with an immunity hearing, that would put pressure on the defendant to testify during the defense case.

Depending on how well the prosecution’s case-in-chief might have gone, the defense might be tempted after the prosecution rests to rest and not put on a defense. However, because the burden of proof in the immunity hearing is on the defense, the defendant would have to testify. This is a classic example of compelling a defendant to testify and possibly incriminate himself by doing so. The 5th Amendment expressly prohibits compelling a defendant to incriminate himself.

That would not be the case if the immunity hearing were held before trial. The defendant could testify in the immunity hearing without waiving his right to remain silent at the trial.

Another reason not to combine the two is that the order of presentation differs. The State goes first at trial, but the defense goes first in an immunity hearing. Strategy can change dramatically depending on whether a party has the burden of proof. Whether a party goes first or second will affect the evidence it will present, its choice of witnesses, and the order in which the witnesses will be called.

Finally, the purpose of an immunity hearing is to identify strong self-defense cases early on and to immunize those defendants from criminal and civil liability so that they do not have to endure the psychological and emotional wear and tear of living a life in limbo while possibly in custody for a year or more before trial. Saves the expense too for all concerned. Combining the immunity hearing with the trial cancels out all those advantages.

Finally, just because a defendant has a fundamental right to an immunity hearing does not mean that he cannot waive that right as the defendant did today.

500 people are going to be summoned to court for jury service in this case and it makes no sense to go to the time, trouble and expense to do that just because the defendant wants to wait and see how jury selection and the prosecution’s presentation of its case is going before he decides whether to seek immunity.


Related and in the news:

George Zimmerman won’t seek immunity hearing

Zimmerman waives pre-trial immunity hearing

Zimmerman Forgoes Pretrial Hearing, Taking Issue of Immunity to a Jury

George Zimmerman’s Decision Leads to Summer Trial

unrelated (hat tip Elliott):

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