As of 2008, they did not have any procedural rules
requiring the motion to be made pre-trial. Rather, the Florida appellate court determined that, if an immunity motion on the Stand Your Ground basis was made, the trial court would have a preliminary evidentiary hearing to determine if it was applicable. In this hearing, and unlike the affirmative defense of self-defense, the accused bears the burden, by a preponderance of the evidence, to prove all elements of the statutorily granted immunity. If he does so, then the case must be dismissed. Here is (what I believe) to be Florida's lead case on the issue:
Peterson v. State Decision result | Leagle.com
Here are the current rules for Criminal Procedure:
Florida Rules of Criminal Procedure | Chapter 8, Florida Statutes 2012. I didn't review them in detail but suspect that there are still no specific rules on the matter.
If I am the defense, I certainly would make such a motion ((post-trial - see below) and argue that there is no rule or binding authority
requiring the motion be filed pre-trial. As the law appears to be silent on when the immunity must be exercised and the Court has not exercised its rule making authority to require the motion pre-trial, to deny my client the right to make such a motion
post-trial is a reversible abuse of discretion by the trial court. Further, and in the alternative, I would argue that
requiring the motion be held pre-trial would unnecessarily jeopardize my client's rights against self-incrimination and creates an impermissible Hobbesian dilemma of whether to exercise his constitutional right against self-incrimination or risk providing self-incriminating remarks in order to prove his statutorily granted immunity.
Don't know if the Court would buy it in light of the
Peterson decision, but I sure would try. Again, however, a Florida lawyer would be much more familiar with the governing procedural rights and might just "point and laugh" at the Maryland lawyer's analysis of Florida law.
In a case like this, I can completely understand the defense's decision NOT to make the preliminary motion. Why subject Z to cross-x when the prosecution is intending to introduce all his statements about self-defense to the court at the substantive trial. If Z testifies on immunity in a pre-trial hearing, he would get scorched on cross-x ... all of his inconsistencies highlighted, all of his background issues brought out and all of his pre-trial lies emphasized (remember the whole money transfer issue??) all in the name of attacking his credibility. On top of that, I am pretty sure the entire transcript could then be read at the subsequent trial as testimony taken under oath on the specific issue subject to the trial.
The "Stand Your Ground" law allows the use of deadly force as long as the defendant can prove the following factors:
•Are not engaged in an unlawful activity.
•Are being attacked in a place you have a right to be.
•Reasonably believe that your life and safety is in danger as a result of an overt act or perceived threat committed by someone else toward you.
Short Answer: I think Z loses on SYG b/c he can't meet his burden of proof.
Based on the facts we
think we know, I don't think Z wins on SYG for much the same reason that the prosecution is having so much difficulty presenting their case. There is just too much speculation and too little evidence of what happened that night.
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Was he engaged in an unlawful activity: For him to given immunity, it is Z's burden to prove, by a preponderance of the evidence, that Martin started the physical confrontation. I think that's a loser right out of the gate. The
only way to do that is for Z to testify credibly that TM started the fight. Initially, Z would be crossed mercilessly and ALL of his inconsistencies would be brought out (and the cross would be available for introduction at trial). I don't think he makes a credible witness on the stand. Also, crappy as she was, Jeneatte's testimony about TM saying "Get off, Get off" makes the "lawfulness" of Z's actions a much closer "he said/she said" issue. Given Z's (to put it mildly) credibility issues, and in light of Jeanette's testimony, I just don't see a "preponderance of the evidence" that TM attacked him.
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Are being attacked in a place you have a right to be: Well, he certainly had a right to be there, just as much as Martin but, again, was he the initial attacker or the attackee? I just don't think he can prove he was attacked even under the more lenient "preponderance of the evidence" standard.
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Reasonably believe that your life and safety is in danger as a result of an overt act or perceived threat committed by someone else toward you: See, again, as with the prosecution - burden of proof is a bitch. I don't know that Z has proved this by a preponderance of evidence. Maybe - but there is just way too much speculation on the point with credible evidence weighing in on both sides.
This last point is demonstrative of one of my consistent themes in this matter - BURDEN OF PROOF. Based on the evidence presented, I question whether Z has proved, by a preponderance of the evidence, that Z
was in reasonable fear for his life. At the same time, based on that same evidence, I feel confident in saying that the State has not proved, beyond a reasonable doubt, that he
wasn't.