SIDEBAR: What You Will and Won’t Hear During the Trial of Derek Chauvin

There are a couple of questions I keep seeing on social media, that I think are fair and valid, and that need to be answered.  I wanted to tackle this, outside of the trial coverage posts.

First thing everyone is asking, is when will we hear about Chauvin’s past?  When will we hear details of his personal life, and about the 17 complaints against him over the span of his career?

That question has a few of different answers.  The first centers around the issue of bias.  Minnesota Rule of Evidence 404(b) stipulates that “character evidence is not admissible to prove conduct.”  Evidence of past crimes or bad behavior can’t be used as proof of someone’s general character in a trial.  The evidence MAY be admissible if it proves motive or intent of the crime the defendant is being charged with.  There’s a saying that goes “We put people on trial for what they did, not who they are,” which is the general summation of this rule.

If anyone wants to introduce past actions as evidence, they have to notify the court ahead of time what evidence they want to present, and why.  The court will then decide if it is admissible.  The prosecution in this case had 8 incidents (out of 17) that they wanted to present, and the judge granted 2 of them.  The first incident was in 2015 and involved an arrest in which Chauvin placed the suspect in the side-recovery position immediately after he was handcuffed.  The hospital staff later noted that the man could have died had the officers prolonged his restraint or done nothing at all, because he had a heart condition.  The prosecution is using this as evidence that Chauvin had knowledge, prior to May 25th 2020, of reasonable limits and force, and knowledge that failure to put a detained person in the side-recovery position could have risk of serious harm or death. 

The other incident is from 2017, in which Chauvin arrested a woman who initially resisted, and it resulted in him kneeling on her back, even though by that time she was not resisting.  With this, the prosecution is trying to show that Chauvin has a disregard for specific circumstances when determining the appropriate amount of force, and simply restrains a suspect with no regard for their well-being until they can be turned over to someone else.

So the first answer is the legal answer.  You can’t use someone’s past behavior to establish character bias for the jury.  It can only be used if it lends motive or intent to the crime they are currently on trial for.

The second is this:  as painful as it is to say, we WANT Derek Chauvin to get a fair trial.  Under US law, any citizen accused of a crime is entitled to due process.  Which means, he has the right to a fair trial, by a jury of his peers, and a competent and vigorous defense from his attorney.  It’s what we would have wanted for George Floyd, had he lived and only went to jail.  I see a lot of people angry that the trial is even happening, because we have video proof of the murder.  But it’s not that simple.  If we want a fair trial and judgment, that means we have to have a jury, and they have to listen to all the testimony, review all the evidence, and make an informed decision on Chauvin’s fate.  I, personally, want every “i” dotted and every “t” crossed, so that when he goes to prison, there is no dispute as to whether it is a fair verdict.

The third answer is more ambiguous, but thought-provoking.  The prosecution is not going to try to introduce Chauvin’s past complaints because it ultimately doesn’t help their case, and because it would be a turn-off to the jury.  A huge part of winning any case is being sympathetic to a jury, and having the jury both trust and like you.  The quickest way to erode that is by getting up in front of them and personally attacking a police officer. Even though tons of attention and awareness have been brought to the subject of police brutality over the last few years, a majority of people still trust the police.  And in my opinion, it’s because you have to, if you want to be able to sleep at night.  No juror wants to sit and listen to someone tell them that cops are evil, that they don’t care about your or your family, and that they are free to do anything and everything they want.  Why?  Because it pulls at the fabric of our sense of safety.  If they’re sitting in the jury box hearing that all cops are bad, then they have to go home and think that all cops are bad.  And then they feel unsafe, and that feeling is unsettling.  People are uncomfortable with the thought of cops being anything but heroes.  Whether out of fear, or blind faith, the majority of people will immediately become defensive if you try to make that argument.  The state is well-served in this case to stick to the facts and the evidence of this incident, which are undeniable.

The other question being asked frequently is, “Why are they allowed to bring up George Floyd’s past if they can’t bring up Chauvin’s?  Why do they get to talk about his drug use and paint him as a bad guy? George Floyd isn’t the one on trial here.”

The answer to this one is part perspective, and part strategy by the prosecution.  We, as the viewers, need to adjust our perspective on what is being presented.  If you are paying attention, the only real aspect of his history that is being discussed is his history of drug abuse.  And while it feels like they’re trying to degrade him or paint him as a criminal, in reality, it’s good strategy on the part of the prosecution.  They are presenting it first.  They are controlling the narrative, rather than letting the defense go there first.  It’s full transparency from the prosecution, another plus.

The presence of drugs in his system HAS to come up at trial, because it’s part of the evidence with the medical records.  It must be addressed.  And if you’re thinking, “well, the drugs aren’t what killed him, so why does it matter?”  If they want to prove he wasn’t killed by the drugs he had in his system, then they have to talk about what drugs he had in his system, and how they didn’t cause his death.  When it’s time for the defense to present, they may try to paint him as nothing but a drug addict, but the jury is smart enough to understand what’s going on.  It won’t be convincing by that point.

This whole situation is so frustrating, and the trial is making people extremely emotional.  The best thing we can do is trust the system, as best we can, and hope for the conviction of Derek Chauvin.  As of now, that outcome is looking extremely likely!

3 thoughts on “SIDEBAR: What You Will and Won’t Hear During the Trial of Derek Chauvin

  1. Judge Cahill disallowed, as prejudicial, admission that Floyd had also swallowed drugs in 2019 to avoid the police finding them, also leading to erratic behavior and hospitalization.

    I’m curious what leads you to be so optimistic about a conviction, when the state’s own witnesses on cross have acknowledged that: Chauvin’s knee was on Floyd’s shoulder, not his neck; no ‘choke hold’ was applied; the restraint used was taught by MPD; even greater use of force – taser, hobbles – would have been reasonable, but were eschewed; the crowd was threatening and interfered with EMTs responding, necessitating extended restraint of Floyd. Notwithstanding today’s expert medical witness, the Defense will soon present the toxicology report noting the 3x fentanyl OD and 75% blockage of Floyd’s arteries, expert testimony that fentanyl causes pulmonary edema, and video showing Floyd complaining about being unable to breath long before he was restrained.


    1. George Floyd isn’t the one on trial, and just like bringing up Chauvin’s 17 complaints, that would be prejudicial.

      The state’s witness acknowledged that the knee was on the shoulder in a clip from around the 9 minute mark. Floyd was already dead by then. So it’s irrelevant. That one piece is all Nelson has to show any placement on the shoulder, and it’s moot because of the time stamp.

      Every senior officer has testified that his use of restraint is not what they are taught. Are we watching the same thing? The type of restraint isn’t even what’s in question. It’s the length of time it was used, the refusal to move him to the side position, and the refusal to provide medical aid when Floyd was no longer breathing.

      The crowd was emotionally charged, and rightfully so. No one physically interfered or threatened anyone. Every witness has testified to that, and that the crowd should not have affected Chauvin’s ability to properly do his job.

      I find it very difficult to believe that the defense will be able to recover from Dr. Tobin, Lt. Mercil, Sgt. Yang, Chief Arradondo, and Lt. Zimmerman, let alone the eyewitnesses.

      On drugs or not, George Floyd died in that moment because Derek Chauvin slowly squeezed the life out of him.


      1. Yes, I was noting Cahill’s high bar on probative vs. prejudicial evidence, not suggesting anything in particular be admitted.

        I believe it was MacKenzie??, one of the state’s witnesses, who volunteered that a restive crowd shouting epithets, etc. would be rightfully considered threatening.

        Even before calling its own witnesses, Defense has made progress in establishing reasonable doubt as to the cause of death. I also see the outlines forming of an argument against the existence of mens rea in Chauvin’s mind, essential for the charges of murder. That Chauvin continued to restrain Floyd after no pulse was detected will need to be rationalized in this context, but may be a tough sell.

        Still, the state must hope all twelve jurors discount the plausibility that it was the fentanyl overdose, regardless of any restraint, that killed Floyd. I anticipate Defense’s case will focus heavily on the medical evidence.


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