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    Ahmed Arbery Shoplifting Video: Admissible in McMichaels Trial?

    Ahmed Arbery Shoplifting Video: Admissible in McMichaels Trial?

    Generally speaking, no, unless the state attempts to introduce character evidence or otherwise puts Arbery’s history at issue in attempting to attack the anticipated self-defense claim.
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    Hey folks,

    Today’s show looks at another Ahmaud Arbery video, released in the last 24 hours or so, of Arbery apparently getting arrested in a parking lot for purportedly attempting to shoplift a 65″ TV. You got that right, sixty-five inches. Go big or go home, I guess.

    The video itself isn’t all that interesting from a use-of-force perspective, and the same can largely be said about the prior day’s video of Arbery having a confrontational encounter with a pair of law enforcement officers in a park. (Interestingly, he’s wearing the same down jacket with fur-lined hood in both videos.)


    The videos have, however, induced several people to ask whether such videos can be at all relevant to the trial(s) of Greg and Travis McMichael, both charged with felony murder predicted on aggravated assault (or, in the case of Greg, aiding and abetting aggravated assault) in this case. After all, it’s not Ahmaud Arbery who will be on trial in those cases, it will be the McMichaels. As a general policy of criminal procedure, character evidence is usually inadmissible in a criminal trial, and these videos would certainly seem to fall into that character evidence bucket with respect to the McMichaels trial (e.g., they don’t touch directly on their confrontation with Arbery).

    There are, however, some exceptions to the general policy of excluding character evidence, and at least three of these exceptions may prove a viable path for the defense to get evidence of Arbery’s character.

    One of those exceptions is a function of whether the state introduces character evidence of its own.

    A second has to do with character evidence that was known to the McMichaels at the time of their encounter with Arbery.

    A third has to do with whether the prosecution attacks the McMichael’s (anticipated) claim of self-defense on the element of Innocence.

    We touch on all that in considerable plain-English detail, share the shoplifting video itself with you, and a whole lot more in this roughly one hour plain-English exposition on the law, so enjoy the show!


    You carry a gun so you’re hard to kill.

    Know the law so you’re hard to convict!

    Stay safe!


    Attorney Andrew F. Branca
    Law of Self Defense LLC
    Law of Self Defense CONSULT Program


    Donations tax deductible
    to the full extent allowed by law.


    amwick | May 21, 2020 at 2:10 pm

    Mr. Branca has a great blog himself.. I keep going back to see the different topics..

    He left all of his Ahmaud posts outside the paywall,,, and I am grateful for that.

    Mac45 | May 21, 2020 at 6:14 pm

    I’m sorry, we do not know what public position the McMichaels will take on just about everything involved in this case, because they have made no public statements about it. They might well have made statements to the police investigators. But, none of those statements should have been leaked to the press prior to the case being closed. This is in keeping with allowing the state to investigate the incident without hindrance. And, that was exactly my point. We do not KNOW whether McMichaels intentionally fired the shotgun or if Arbery caused it to fire while he was attempting to pull it from McMichaels’ grasp. And, that little point does make a difference.

    As to portraying Travis McMichael as being the victim of an assault by Arbry, that is cleaer from the video. Look, whenever one person physically attacks another, that is a criminal offense. There are certain defenses to a criminal charge of assault or battery, one of which is self defense. Also, attempting to relieve a person of his property, by force, is the crime of robbery. Again, in certain cases, doing this in self defense is a defense to a charge of robbery. The video clearly shows Arbery attempting to forcibly remove the shotgun from Travis McMichaels’ possession. And, McMichael would have a right to defend himself from physical attack and to retain his property, unless it can be proven that Arbery acted in lawful self defense. Now, this is the dilemma faced by the prosecution. They have a high profile case, which a single juror who could sink the successful prosecution of the McMichaels if that juror believes that no aggrvate4d assault took pace and Arbery’s attack was not legally justified self defense. Prosecutors do not like to lose cases.

    You keep throwing around terms like breach of the peace. Which Georgis statute are you addressing here? After all, the McMichaels were not charged with breach of the peace. Then you make thee assumption that the McMichaels MUST HAVE known that their actions would have resulted in someone getting shot? That does not follow at all. If it did, then Arbery should have known the same thing when attacked Travis McMichael. Is this then Arbery to blame for the incident? Was this responsible conduct? Probably not, on both sides. The question is were any of these actions a violation of criminal law and, if so, who violated which laws?

    Now, we also have a system of justice in this country which debates the question of damages and who is responsible for those damages. Where criminal laws usually require that a single person bear total responsibility for the violation of a law, the civil process can assign a percentage of the responsibility for damages, resulting from the actions of more than one person, among all involved. And, this is where this case should probably be. The standard of proof is considerably lower in a civil action than in a criminal case.

    Now, get ready for a big disappointment in the criminal case. There is a very, very good chance that, should this case go to a jury trial, the McMichaels will be acquitted. All it takes is a single juror to accomplish that. And, as I have pointed out, a strong case can be made that the McMichaels actions, while possibly being ill-advised, were not a violation of law. I realize that this will be hard for you to deal with this, if it happens, as you have already decided the guilt ans innocence of the parties involved.

      Mac, I agree with everything you posted, with one technical exception, which I believe you meant something else: it only takes one juror for a hung jury, but it take all twelve for an acquittal.

        James B. Shearer in reply to Redneck Law. | May 22, 2020 at 11:11 pm

        And if the jury hangs the prosecution can retry the case as in the Michael Dunn loud music case where the jury hung on the top charge in the first trial. He was retried and convicted in the second trial.

    Help me out here:
    The guy following the McMichaels filming the incident , William Roddy Bryan, was recently charged with Felony Murder (and other charges, predicated on Felony Assault). If Bryan did not have a weapon, and was violation not statute by driving down the street several hundred feet behind Travis McMichael, how can it be proven that Bryan put Arbery in fear on immediate bodily harm? My cynical guess: pressure on Bryan to testify against the McMichaels to fill in the blanks necessary to prove all the elements of the criminal offense of Felony Assault.

    In the same vein, unless Greg McMichael brandished his weapon (pistol, not a shotgun), how can he be charged with Felony Assault? I can’t tell if Gregory fires his weapon in the video, but if he did, it was well after the altercation between Arbery and Travis McM. Note: I see no conspiracy charge in the McMichael’s charges or Mr. Bryan’s.

    forksdad | May 22, 2020 at 9:22 am

    So now racial slurs are ok. On legal insurrection. Great.

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