QUESTION - Will the Defense move to dismiss charges after the Prosecution rests.
It seems Judge would have to dismiss at least the 2nd degree murder charge? Correct
There is only one charge against Zimmerman: murder in the second degree. There are no lesser charges. If the prosecution has failed to provide sufficient evidence of depraved mind then the judge can issue a directed verdict of acquittal. The prosecution cannot reduce the charge once the trial has begun.
Yes. Motion for a Judgment of Acquittal. The state has not produced evidence that disproves self defense beyond a reasonable doubt. The self defense theory has not been ruled "impossible" by the state's evidence.
The judge should grant it, but she will deny it. This is an issue for appeal, in the highly unlikely case the jury convicts.
-- It seems Judge would have to dismiss at least the 2nd degree murder charge? --
Dismissal is based on justified use of force. That trumps any underlying charge. If it goes to a jury, the jury will get instructions on murder 2 and manslaughter. The difference is defendant's state of mind. he has to have a depraved mind, indifferent to human life in order to be convicted of murder 2. Negligence is enough to sustain a manslaughter conviction. But, again, self defense trumps, and the reason the case should be dismissed after the state rests is because the state did not disprove self defense.
You do raise a point I hadn't considered, judge thinks there is enough evidence to disprove self defense, but not enough evidence to make murder 2 (no depraved mind, ill will, spite). That combination of finding would result in charging the jury with only an manslaughter charge - or, the judge might read the law as only giving the JURY the option for lesser charges, and the judge does not have the option to allow a lesser included charge. I don't know a case on that point.
doubt it. the way this judge is goibg she’ll say it’s up to the jury to look at the case presented and determine if they’ve proven beyond a reasonable doubt.
Don't they always? Even if the Prosecution's case was good?
The defense would always make the motion, though they may not believe they are going to get it, they would make the motion.
On appeal, one issue may then be that the motion was improperly denied.
There is no way this judge will take the responsibility for dismissing these charges.
I’m assuming she is an elected judge, but even if not, she will not assume a duty that she can avoid.