inferences from the evidence. i understand mr. west doesn't think of any of it is credible or right. respectfully,'s up to the jury, not mr. west. the issue is, i think, the provocation language should be included. the only issue i hear is whether or not it also ought to, on top of the issue was provocation, include the phrase force or threat of force. and again, carrying a firearm or grabbing or accost iing to the point that someone hears, let go, and a physical struggle. that is evidence of force or threat of force. it doesn't have to -- it doesn't s say -- gibbs certainly doesn't say deadly force because, of course, gibbs is itself a non-deadly force case in the first instance. the state's argument is the defense is arguing what is credible, not what is actual.

>> i understand both arguments. >> let me point out, as a matter of law, following someone on foot or by car is not against the law. you are absolutely allowed to do that if you want to, and especially if you want to tell the police where the person is. that cannot be considered provocation under the law, just like, because you happen to have a concealed weapons permit and have a licensed firearm on your person, that cannot be considered actual force or the threat of force. it obviously, under gibbs, and the reasonable construction of this issue, with our common sense, is force means force. force means force, physical force, or the threat of physical force, not a gun that's properly concealed, and certainly not the lawful act of doing what you're allowed to do in this state, which is if you see somebody

suspicious, by your own definition, frankly, whatever you think is suspicious is good enough under neighborhood watch or by any other measure and you call the police and you're asked to let you know if he does anything else and you follow the person in order to be able to tell the police where they went, by car, on foot, what have you. that's not legal provocation and it would be error, and frankly, promoting miscarriage of justice if the state were allowed to argue that to this jury. >> there is a separate instruction whether or not there's unlawful activity. we're not asking the court to instruction the jury wearing a hoodie and walking in the rain is also lawful activity. there is a separate instruction. >> we're not there yet. >> i understand. here we're talking about whether or not the totality of the -- >> we're still under the 776.01. the defense doesn't want it. the state does. the court is not going to give

it. the next paragraph in the defense version starts with however before you can find george zimmerman initially provoke provoked, that's in the defense version, it's not in the state's version. do you want to talk about that? >> my understanding is, from what i've heard before, it's only there in the defense version. >> because of 77 -- >> because of 774.01. if the court is giving none of that, i assume they don't want that in there either. >> then we go to the next one the defense is, you are further instructed merely following trayvon martin by car or on foot in order to report his location to the police is not sufficient for you to find george zimmerman provoked the use of force against himself by trayvon

martin and before george zimmerman can be found to have initially provoked use of force against himself, george zimmerman must have used actual force or the threat of force against trayvon martin. >> i think that's the same issue. >> all of that comes out, too, is that correct? >> it's all part of the extended. >> just making sure we get everything here. >> right, judge. >> the next one is the paragraph that says, in deciding whether defendant, whether george zimmerman was justified. i don't see any differences in those paragraphs. am i correct? >> yes. >> that's acceptable to both sides? >> so is the next paragraph. >> well, on the next paragraph, interestingly enough, both of you did not follow tally and take out the comma. and cases have been reversed after that infamous comma, indicating deadly force. that comma should be removed based upon tally at 106 southern

3rd 1015. do you agree? >> i agree. >> do you agree, mr. west? >> that would read stand his go around and meet force with force, omit the comma. >> no. that comma tai stays in. the including deadly force, that comma comes out. >> sure. that's fine. >> do both sides agree with that? >> yes, your honor. >> you agree that complies with tally? >> i do. there's no other issues in that paragraph. the next one in the defense version is -- this is greta. she works in quality control.

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welcome back, everyone to our continuing live coverage of what is winding down now in the trayvon martin versus george zimmerman really florida versus george zimmerman case, second degree murder murder case. the attorneys are haggling now over the language. what you just missedderi during commercial break, west, i heard on the media last night if trayvon is following -- if george zimmerman is following trayvon martin, he's guilty of something. that's not part of the law. the truth is it isn't part of the law and the jury needs to understand it according to this defense attorney. >> the jury told by the court it's not illegal to follow somebody especially if you're doing it to tell the police where this person went. >> response? >> as the state objects, we would note it's the first time i ever heard unnamed media

commentary cited as legal authority to the courted. i would submit while following itself might not be illegal that following is one factor the jury is free to consider in this case. it is something that evinces the defendant's state of mind. it doesn't have to be illegal and i don't think the instruction -- we want to talk about what confuses the jury. when the court starts telling them things like it is not illegal to walk across the street. it is not illegal to walk home from 7-eleven in the rainwearing a hoodie. it is not illegal to be armed with a pack of skittles. that tennes to confuse the jury. it is also inappropriate for the court -- basically this instruction is demand for july notice of a fact in question in the case and given a jury instruction to the jury. the state contends it is n notlelnot le legally proper to request it. >> ask the state to produce the statute that makes it illegal to follow somebody.

>> you're asking him to prove a negative, basically. >> no -- >> my question is show me a florida statute that says this is the law in the state of florida. you're asking me to put in here is not unlawful activity, under florida law. you can argue that to the jury in the closing argument. >> judge, detective serino said so, in his testimony. any law enforcement officer -- >> as far as i know, i don't think that he drafted any of the legislation. >> mr. mantei didn't say it was illegal to follow someone. he can't cite you. criminal statutes are pretty precise, designed to put people on notice what's legal and isn't. if it's illegal to follow somebody, tell the police where they're going there better be a law against it, otherwise you can't say it's illegal to do that. >> you're repeating your argument. i've heard the argument from

both sides, i am not giving that instruction. >> we submit that's an intrical part of our theory of the defense and it's error by not instructing the law -- this jury properly on the law. >> i understand. i've already ruled. you have -- you continually disagree with this court every time i make a ruling. i have provided you on three separate occasions with the court's professional conduct in the courtroom. included in that is do not continue to argue with the court after we've ruled. if i have made a mistake in this case, you will appeal. if there is a conviction, it will get appealed to a higher court and they can review it to determine whether or not i made a mistake. this is my ruling on this issue. you are free to communicate that to the jury in your closing argument. i am not instructing them on that. moving onto the next -- >> i would like -- i'm not disagreeing, i would like, though, to move in limine, at this time, with regard to mr.

de a ronda or mr. guy or mantei's anticipated closing argument to ask the court to order them not to suggest to the jury that following somebody on foot -- >> do you want me to get into getting a predetermined transcript of what each side intends to argue at closing argument and go through it and say what can and cannot being you goed? >> no, ma'am. >> you are free to argue that. >> just this. it would be an improper argument of the law if the state were allowed to suggest to this jury that it is unlawful for someone to follow another individual by car or on foot. >> i'm not going to address that issue. >> and the state being allowed to make that argument would mislead the jury as to the law and would allow the jury to make a decision based upon an improper legal premise, because

the state can't make that argument legally and i'm moving in limine now for the court to preclude that specific argument, and i understand the court's ruling as to the instruction. >> your motion in limine is denied. the next portion of the instruction is a paragraph going off of the defendant's suggested instruction. it starts at in considering the issue, there doesn't seem to be any objection hors d'oeuvres in that paragraph, am i correct? >> i would say, your honor and the next one as well. >> the next one is if in your consideration of the issue of self-defen self-defense, it's a three line paragraph. there doesn't seem to be any differences. is there any objections to that paragraph? >> not from the state. >> no. i think that's the standard language now. >> thank you. the last one starts with however, if from the evidence, three lines, is there any objections from the state? >> no, your honor. >> from the defense?

>> agreed that's the standard language. >> okay. so i think we have -- were there any other requested changes or additions to this instruction by the state? >> as it relates to the justifiable use of deadly force? >> correct. >> again, having already argued and simply relying again on the case of johnson versus state, which is also in the packet regarding the provocation instruction, no, your honor. >> any other being requested by the defense other than the ones i've already ruled on? >> within the justifiable use instruction? >> yes, yes, sir. >> no, your honor. >> then the next one. we have, the defense has another o one -- you just included in your packet, the state's proposed instruction on justifiable use, is that correct? >> i did, just for comparison purposes. >> thank you. okay team!

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live from sanford, florida. i'm ashleigh banfield reporting. let me just say usually during a trial, the jury instructions are the most boilerplate boring part of the litigation. not today. this is hard fought. the wording, even down to the commas. this judge has just suggested that a comma, if a comma ends up actually overturning a verdict it wouldn't be good and they fought over a comma. rich mantei and don west going at it.

every single word, every phrase, every part of this jury instruction, they want to be so accurate because so much of this has come down to the words spoken and the words argued. let's continue to listen. >> it's clear the law allows it. the supreme court could have easily said at any point in time you can't give it. if you give it, it's error. they haven't done that. what they've done instead, what has happened since, if you will, is that if the court thinks it's appropriate in a given case because of the some what unique circumstances of that case, it is entirely proper to give the instruction. so, knowing that it is proper, in some cases, i'd like to speak for a moment about why it's proper in this case. since, if the court gives it, it's not error. if the court denies it, it's probably not reversible error

unless a review in court finds that in fact this is that case, the case where it's specific enough as applied that it should have been given. that's sort of the standard that we're looking at. here's why it's important in this case. first of all, in voir dire, mr. de a ronda made a big deal, a really big deal about direct evidence and circumstantial evidence. getting the jurors to agree and to understand and to basically say, okay, circumstantial evidence is just as good as direct evidence. we know it's not actually. it's not as good as direct evidence unless it meets the conditions or the criteria set forth here in this special instruction that this jury would have to apply in this case. it must be -- the circumstances

themselves have to be proved beyond a reasonable doubt. the jury needs to know that when you're comparing circumstantial evidence versus direct evidence. they need to know, from this court, that the circumstances must be consistent with guilt and inconsistent with innocence. meaning, if they have a fact that's circumstantial, that tends to prove something that the state is claiming it supports or it could be interpreted as establishing a doubt or something that the defense claims exists, then the jury needs to know that if they have to decide how to interpret that piece of circumstantial evidence, that before they can use it against mr. zimmerman, they have to believe that it is only consistent with guilt and could not be consistent with innocence. in other words, mr. -- mr. zimmerman gets the benefit of that issue. whether or not it's consistent with guilt or innocence, they

must find it in that instance, consistent with innocence and give mr. zimmerman the benefit of it. and, of course, that when you connect up the dots, if you will, when you pile on all of these circumstances, they must be so conclusive that it can only indicate proof beyond a reasonable doubt of the guilt. if the circumstances are susceptible of two reasonable constructions, one indicating guilt, the other innocence, you must accept that construction indica indicating evidence. indeed under the circumstances of this case, which is all circumstantial, if you will, on the issue of intent. and, frankly, a lot of it is circumstantial on the core issue of self-defense.

even though mr. root said that george zimmerman's conduct was objectively reasonable under the information that he had. the jury has to find, was his fe fear -- did he reasonably believe that he was facing imminent great bodily harm or death if he didn't respond with force. they're going to have to get inside george zimmerman's head. they're going to have to take what was going on in his head under those circumstances, apply it to their own common sense, to their own some what objective standard of what's reasonable and what isn't and come up with a decision based on circumstantial evidence, whether under those circumstances it was reasonable, after being hit in the nose, after having his head smashed on the concrete several times and being held down on his back, whether it was reasonable for him to have responded to that force in the manner he did.

so, there is no other instruction, i think, that's as -- as specific, as poignant, as appropriate to help the jury define -- to help the jury analyze the evidence in this case than this particular instruction. it could not be said to confuse the jury. in fact, it gives them the guidance that they desperately need in a case just like this one. so, of course, while the court has discretion, the discretion should be exercised here to give this instruction. it's perfectly proper. anyone have occasional constipation, diarrhea, gas, bloating? yes! one phillips' colon health probiotic cap each day helps defend against these digestive issues with three strains of good bacteria. live the regular life. phillips'.

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welcome back to the seminole county justice center and our live coverage of the george zimmerman second degree murder trial. to say it's in the homestretch is an understatement. the hard fought jury instructions going on right now not something you often see in

any kind of criminal procedure. let me bring in mark, a renowned criminal defense attorney here in florida. you and i have been sort of gob-smacked, i think is a fairway to describe come of the repertoire between don west and this judge. i think fair to say she's kind of had it and fair to say he's kind of had it? >> there's no love lost between these two. i don't know i would describe it as gob-smacked. >> i have. here's why. especially in the motion in limine rulings, and that was in common parlance, that was an effort by the defense to say, judge, you cannot allow the prosecution to get up there during closings and appeal to this jury that it's illegal to follow someone. she said, sit down, effectively. >> i agree with the defense on this. in that the state has made much to do about the following. well, the following occurred but, you know, they basically conceded by their -- when they were straddling these dummies that trayvon martin was in fact on top.

so this whole depraved mind that he was following him and all that -- >> hatred, depraved mind -- >> they've almost conceded they're seeking a lesser included for negligence, for basically over reactireaction be zimmerman and this should end up being -- >> culpable. >> that he was over -- >> is that recklessness? >> yes. they've almost conceded that. this whole depraved mind, issue about stalking him and following him and these racial undertones and seeing a black kid in the neighborhood wearing a hoodie and all these things, you know, that's really not what we're hearing anymore. they changed midstream. not even midstream, about 90% down the trial. >> so effective in a closing to include it. >> when you read the blogs, go to my twitter or facebook. what do you hear? that he followed him. if he had never gotten out of the car and never followed him. that represents the public. these jurors represent the public. a lot of people are locking on to it. >> you just hit the nail on the head. there's the public, there's the

cable analysts. there's the yelling and the screaming and there's the law. and the law states in florida and probably most of the other 49 states it is not illegal to follow. period. >> period. >> so to instruct a jury -- any time you instruct a jury on the law in closings is not allowed. if you try to object as a defense attorney, it looks bad. >> it looks bad. you try not to interrupt each other's closings. there's no love lost for these two sides. they're brass knuckles, bloody knuckles and fighting each other on everything and there will be interruptions if one side doesn't like what the other side. the challenge the state h has -- the courted has if the state brings it up she doesn't allow speaking objections and you highlight the area and it looks even worse for the defense. want to go back into this live proceeding, judge debra nelson, love her or hate her, she rules this court with an

iron fist and she has kept this process moving. i will remind you about o.j. simpson's case took over nine months and judge ito may not have ruled with an iron fist as this judge does, love her or hate her, it's moving and that's important. >> there is no objection to that instruction being given. is that the same today? >> it is from the state. >> mr. west, you don't have to keep jumping up and down. you can remain seated. >> thank you. >> you're welcome. >> i just caught something here, whether we're going to personalize these instructions, too? >> all of them. every single thing will be conformtive. >> yes. no objection. >> rules for deliberation. yesterday, there was an indication there was no objections to this instruction. does that remain the same today? >> yes, your honor. >> your honor, if i may as to the substitution of the names, do you want that in the title, too, the defendant's statements to the title you want that to

say george zimmerman's statements? sn>> yes. >> thank you. >> the instruction on notes, the indication yesterday there was flow objectio no objection. does that remain the same? >> yes, your honor. >> cautionary instructions, no objection yesterday, does that remain the same? >> yes, your honor. >> verdict. no objection yesterday, does that remain the same? >> yes, your honor. >> defense? >> yes. that's fine. >> submitting the case to the jury, no objections yesterday, does that remain the same? >> yes, your honor. >> agreed. >> okay. we have to talk about the felony murder third degree. one of the -- one of the elements for felony murder or

the child abuse, the child abuse portion of the felony murder. >> yes, your honor. >> is the intentionally, having an initial issue with that. child abuse requires the defendant to have committed an intentional act. >> yes. >> that's not alleged in your information. >> the shooting is an intentional act. it's the same intent required for second degree murder. second degree murder requires the additional depraved mind element, but i don't think it's argued that this was an unintentional shooting. the question is whether it was justifiable, but not whether it was intentional. >> that's the issue that i'm going to be looking at. i will give mr. west some time

to do that. the other -- was there any objections to the manslaughter instruction, as it is written? >> no. >> so the only one that i have to deal with and make a determination on is the felony third degree murder. can we then now look to the proposed verdict form? >> judge, to the third degree murder issue, judge, of course, the court pointed out, it's one of those historically category 2, which means that it's discretiona discretionary, so long as the evidence -- >> the state gets it if they want it, if the facts fit to it. it's not really a discretionary issu issue. >> i disagree, but -- >> okay. i'll cite you to i think it's johnson versus state.

>> in any event, i'll look at that. >> i want to make sure i give you the right citation. >> it's clear that the state must convince the court that the unique facts of this case -- >> of course. always the facts have to fit into it. that's not the issue. the issue is whether or not, if the facts fit into it, do they get a second degree -- second category 2 instruction. >> there is the state's proposed special jury instruction regarding the definition of great bodily harm as well. >> i'm sorry. >> my understanding the defense objects to that in it's entirety and obviously, i don't intend to place it, if it is given, at the end, but we could discuss placement, if we wish, if the court is going to promote it. >> put it on the record to make sure. state's proposed special jury instruction number 1, defining great bodily harm, setting the

authori authority, 840 southern 2nd 423, fifth dca, 2003. suggested instruction raised great bodily harm in the context of aggravated battery means great harm is distinguished from slight, trivial, minor or moderate harm and as such does not include mere bruises as are likely to be inflicted in a simple assault and battery. that would be if the court was giving the instruction on the justifiable use of deadly force, that included the force of it being inflicted on the defendant, is that correct? >> well, i don't agree necessarily, just to that. i would agree that if the court is not going to give the issue about aggravated battery, that we might remove the phrase of aggravated battery. however, even the requested instruction by the defense

discusses the concept of in fear of imminent death or great bodily harm. so i think the definition and the concept behind chesnaub and core r coronato and owens and all these cases cited here is defining great bodily harm so the jury has a frame of reference. whether the court gives the state's requested additional instruction or only the defendant's instruction. >> let me see hearing what you say. you take out in the context of aggravated battery. >> yes. >> and put it in the defendant's version of justifiable use of deadly force after the paragraph a person is justified in using deadly force if he reasonably believes such force is necessary to prevent imminent death or great bodily harm to himself? >> that would be a reasonable location. >> okay. e dr good student and multi-policy discounts could save you hundreds of dollus.

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welcome back, in sanford, florida, i'm ashleigh ban ford. it can be difficult to understand the legalees that goes on especially during jury instructions and what the statute says and how they will defined it to this jury. usually, it's boilerplate and a little bit boring. there's been nothing boring in this murder trial. it has all been electrified. even jury instructions have been contentious and ugly and it has brought them to anger in fact. let me give you a quick idea what we have here. there has been fighting with the judge with don west and they're just going over technical stuff, you're not missing big arguments. they have been arguing over fighting with the judge and arguing over arguing. part of this problem. they wanted to instruct on the definition of different laws. pardon me. i'm having a little issue with

sound in my ear, so while i get that re-established. while the prosecution argued, they want to instruct this jury on third degree murder, third degree felony murder with the underlying felony being child abuse, because trayvon martin was 17 years old. that elicited an eruption from don west on your screen saying, are you kidding me? this came at us at 7:30 this morning. i'm not even prepared to argue this yet. it was sort of like a left hook, i didn't see this coming. this is a lot of research we have to do. that's part of the problem happening in this courtroom. the other issue is they wanted to define great bodily harm because if there's great bodily ha harm, we need to assess what harm did george zimmerman actually suffer. was it great bodily harm? in justifiable homicide in this statute you need to establish great bodily harm might have been imminent. they wanted to define, what was it? cuts and bruises, or more significant, broken bones, broken nose, bleeding from the

head? you have been in this courtroom with this judge, you have worked with her before. this is your state, you know the statute at the back of your hand. i look at him and he knows the answer to everything. i have not seen such arguing going over commas, wording and actual statute and what the jury will be in strunstructed as i h here. highlights are what? >> you got into the bruising issue. and that's what they're discussing now what is bodily injury. the state is trying to say bruising does not constitute th that. they're in this midst of that now. the big issue is you heard don west really arguing about two things, and he lost about it, wanted, as indicated, it was not against the law for george zimmerman to follow trayvon martin. the judge said, no. they can go ahead and claim that. that's part of where they're going with this whole thing. >> it's weird because in closings you're not allowed to instruct on the law. >> it's going to be out there. now, the defense has a real tactical issue. do they object when it gets

brought up during the course of the closing? that's a big part of the state's case and it didn't really get -- >> during closings, this is a little known fact, not many times do you see objections. it's not considered to be a good thing to do. during jodi arias's closing, a dozen or so objections. really strange. >> that might speak to the entire profession. less and less professionalism is given. both sides, you put up the white flag at that point and you go ahead and let everybody make their arguments. >> your colleague here, don west, is now talking about the great bodily issue and let's get analysis afterwards. >> for the court to deviate from the jury instructions with something specific that doesn't apply, that's not an accurate statement of the law or definition that has been approved in self-defense cases. this is treading on very thin ice for this court, very thin ice for the court under these circumstances to instruct this jury on something that just

isn't the law. >> response? >> i disagree. the standard jury instructions for any defense, self-defense, anything, there is no definition anywhere. that's the reason the courts have given it. self-defense isn't sort of some special circumstance. the fact is the phrase, great bodily harm, is used in an instruction. whether it's in the self-defense instruction or whether it's in connection with another instructions isn't the point. the point is the court said, all these courts said, the standard jury instructions provide no definition of great bodily harm. and that's anywhere. that is the reason they approved the court giving the jury some guidance as to what that might be. i would first point out that mr. west is not correct that any doctor said injury x must have come from beating your head, i think as he put it, hit on the concrete or bashed on the

concrete. what he said was it is possible and consistent with that happening and consistent getting struck by any hard object, including a fist. >> that's not true. >> please don't interrupt each other. but i'm going to interrupt. >> yes. >> you had to take each of these proposed jury instructions and the special in strurkzs being requested by either side and weave it into what the evidence shows so the jury can be instructed. your argument that you just provided to me has two different sides of the story that the jury can decide which one they believe. whether the injuries were consistent or they were not consistent. the instruction that you're seeking to have entered is -- says that great bodily harm is distinguished from slight, trivial, minor or moderate harm, and as such, does not include mere bruises as are

likely to be inflicted in a simple assault and battery. the testimony before the court, whether the jury chooses to brief it or not, that that's -- believe it or not, that's their purview is you don't have to have any injury to be in fear -- to the extent of the justifiable use of deadly force. >> i agree with everything the court said. that's why the argument wasn't quite finished. what we're talking about here is the defendant's reasonableness of his fear. if his fear is only that he's going to get a fist beating, for example, that is -- that is something that the jury should know in relationship to the definition of great bodily harm. >> i find this definition akin to what i've just stricken from the defense request that they want me to instruct them the florida law is it's not illegal to follow somebody. i find this akin to that. i understand your argument. you have it all on the record.

i've cited the cases you cited to me in support of them. they're on the record. unless you have further argument about that, i'm ready to rule. >> especially, the only further argument i'll make on it this, especially since i believe we should include the aggravated battery sections as relates before, especially since, i think those should also be included, most certainly this definition should be included. >> i've already struck those, so that's not an issue. the court is not going to give that special instruction. so is there any other special instructions being requested by the state? additions? omissions, anything? >> the only -- again, the only other one was the provocation instruction under johnson, where, because there's evidence in the record, that johnson may have initially provoked, that should be given. those were the two that i think the state was requesting here, and then the aggravated battery definition. >> okay. >> that was it. [ nurse ] i'm a hospice nurse.

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welcome back to sanford, florida. i'm ashleigh banfield recording live at the seminole county justice center. that has been a very busy place the last few weeks and we're in the homestretch of the second degree murder trial against george zimmerman. the judge is looking over case law right now. good opportunity to get to danny and faith. danny, i want you to comment for me, if you will, right now, over how critical in a case jury instructions are. honestly, when you hear them being read in a courtroom, they're so technical, they sound so eloquently worded, like a legislature put them together, oftentimes i wonder if they're lost on the jury and yet they're battling tooth and nail for every word. >> no. i think they're critical. here's why. when the attorneys give their closing argument, i think jurors take a little -- understand, look, they're obviously biased. this is the adversarial system.

the lawyers have an opinion and giving us their argument. but the last words they hear are going to be from that judge, the person sitting up in the black robe, a foot higher than everybody, instructing them on the law. if an attorney can get in the jury instructions the attorney wants, they've effectively grafted their own final argument, their own closing into the jury instructions, so it's critical, even though you're absolutely right, it's often glossed over and done very quickly, it's of critical importance because the judge will be instructing the jury what the law is and who do you respect in that room more than the judge? >> it takes about -- every case, every jurisdiction is different. it takes upwards of about 20 minutes to read those jury instructions after the closings and the judge does it. she reads those instructions, right to the jury. in some jurisdictions, faith, you are not allow, as a juror, to take a copy of those jury

instructions back into the deliberation room with you. you are somehow supposed to, through osmosis, have that in your dna, as you go over all the evidence and absorb all those closing arguments as how many times have you litigated in a courtroom as a prosecutor have you had an issue where a jury has come back and said what was that law part again? can you define that thing again for us? >> right. as a prosecutor i always knew it was a problem if the jury came back and wanted to know what's the definition of reasonable doubt again. that's the one question you don't want the jury to come back and ask when you are prosecuting a case. you're right. these jurors, and as you can see, now, some lesser included may be included here, so they're going to have a lot to consider, not only the statute itself but the kwendefinitions, the kwengs every word. you just heard the prosecutor ask the judge about a definition there. that's a lot to recall and a lot to remember for the jurors. >> it is a huge amount.

it is so technical. let's not for get these people are in that courtroom maybe for the first time, some of them may have done jury duty before. some are walking in for the first time and hearing the language and may not have heard the word sustained before when it comes to the objections, so when we come back, we're going to go back into the live testimony when we come back we'll talk about the reasonable doubt issue and the definition of reasonable doubt. you don't get an instruction on that and you don't get a definition. it is in here. let's listen to don west back and forth to the judge. >> the order of the possible verdicts is also incorrect. >> okay. >> so i want -- i would like the court to address this, and that is that manslaughter is a category 1, third degree murder is a category 2, so the logical choice would be if the court is going to give those lessers, that the first one be murder, the second one be manslaughter, and the third one be third degree murder. >> okay. is there any objection to that by the state?

>> no. we're good. that's fine. the only issue with that is we then have to repeat because the firearm findings for each of the murder counts are different than the firearm findings for manslaughter because of the 1020 life language. >> the 1020 life doesn't apply to third degree murder. >> it does. >> it does, too. it even applies to aggravated assault. >> yes. >> well, i will have to -- >> it does apply. you will just have to put it in a a that would make sense. the court's ruling will be the charges the first and then the special finding by the jury. before we recess for lunch, let me give you a schedule thing. yesterday mr. west, you indicated or i don't know if it was mr. omar a i am getting into a housekeeping issue, you had sought to introduce into evidence defense exhibit d d, and that was the portion of a tape played in front of ms. j n

jennteal, and the court indicated my notes reflected that was played outside the presence of the jury and i asked the court reporter to check her notes and the e-mail that i got back was in cross-examination immediately after lunch mr. west asked questions regarding the, quote, you want that to, end quote, part of the type, and that was played to ms. jenntile outside the presence of the jury. when the jury was brought back in mr. west used the transcript to question her on that issue, so the court will not be admitting dd into evidence. it was not played in front of the jury. as far as scheduling purposes goes, i know the jury is supposed to be back at 1:00. i know that mr. de la rionda wants the jury instructions settled before he does closing argument. we'll be in recess until 1:00.

i will take up the second degree murder argument and there after mr. de la rionda will be giving some moments but that would not only thing he has to plug into the closing argument and we'll start closing arguments for the state this afternoon. >> the third degree murder argument, urn. >> third degree, i am sorry. manslaughter will be given

i am ashleigh banfield reporting live in sanford, florida. you're not missing any testimony. the great seal of the state of florida is what the camera is trained on in the courtroom. judge debra nelson decided they need a brief break and that maybe an understatement. this he have been at it since 9:00 this morning. so far it is hour upon hour of hard fought battling over the language of what this jury is going to hear in what is typically kind of boilerplate jury instructions, not this time around. every single word counts. every word matters. i will bring in a renowned criminal defense attorney here in florida. we came in this morning, expecting to have a jury instruction for second degree murder. that's what is charged. what was that issue were the lessers. i probably mistakenly thought manslaughter was an automatic lesser included under second degree murder. they fought over it. >> i think it was the futile effort. they needed to make a record. it is a necessary included

category, one offense. it was going to go in there. the defense tried to make an argument the state hasn't made any suggestion or shown any fact that would allow it to be justified. >> it is in. >> it is in. >> right now the jury is going to consider second degree murder against george zimmerman and manslaughter which by the way is in small joke when you have a gun involved in the crime here in florida. >> no, no, on the manslaughter it takes you from a second degree felony of 15 year mandatory minimum to excuse me a 15 year maximum to a 30 year, so now the exposure because the firearm would be found to be used would take that manslaughter to a 30 year possible sentence. >> and the firearm. the firearm put it into the category of 1020 life law, correct. >> the category of an elevated offense, second degree felony to a first degree felony. what they fight over takes it to the 1020 life and that's the third degree felony murder. >> here is what was such a bombshell, not just to us

listening in the television land but also it seems that at 7:30 this morning before court was under way to the defense attorney that is the prosecutors in this case intend to request another increaser included, third degree murder, felony murder, with an underlying felony of child abuse. if that is surprising, here is how the prosecutor argued it in front of this judge. >> the felony alleged in child abuse. obviously the information alleges that the defendant shot and killed the victim, that the kim was under the age of 18, and child abuse must be according to the third degree felony murder instruction defined. i have defined the elements of child abuse in the felony murder instruction, and i have also included what i believe is required under the child abuse instruction which is when the child abuse is premised upon

physical injury, there is a required reference to chapter 39 to define what that physical injury may mean under the florida statute. that definition has been likewise included. in case law on which i would rely, begins i think in the stack that's been provided, it is hermanson versus state 604, 7 second, 775, the supreme court florida case from 1992 and in that case as set forth on page 2 of the court's decision, a third degree murder provision, section 782.04 provides the killing of a human being engaged in the commission of child abuse constitutes murder in the third degree and is a felony in the second degree. in that case unfortunately the state combined the instructions for both child