As happens with gratifying frequency, one of the Legal Insurrection commenters today made a great contribution to yesterday’s thread, “When Is Evidence of Your Attacker’s Character Admissible In Court?”

This particular comment was posted by “Edgehopper” (I could tell you his real name, but then I’d have to kill you–let’s just say he’s a real lawyer at a real firm), and was so exceptionally clear, succinct, and to the point I thought it was well worth re-casting as its own blog post. Indeed, I wish I’d thought of writing it myself, as it would definitely have been today’s “Law of Self Defense” post (except probably a bit less clear, lengthier, and more meandering).

Nelson ruling

Judge Brenda Nelson, Florida v. Zimmerman

That said, here’s Edgehopper’s take on the the legal grounds on which Judge Nelson could, theoretically, have properly excluded Trayon Martin’s cell phone contents from evidence (and I think he’s dead on):

There are four different grounds Nelson could have used to exclude that [cell phone evidence]: authenticity, hearsay, relevance, and prejudice.  None should have applied.

Authenticity – The rule for authenticity is that the party presenting evidence has to present sufficient evidence that a reasonable person could conclude that the evidence is what the party says it is.  It doesn’t have to be absolute proof, and it doesn’t have to be undisputed.  The cell phone texts came from Martin’s cell phone, and were stored there in a password protected folder.  That’s enough under Florida case law Andrew cited in earlier posts, and just under common sense.  Nelson’s speculation that someone else could have used Martin’s phone to send the texts wasn’t remotely enough to justify exclusion; at best, it’s a weak argument as to the strength of the evidence.

Hearsay – A statement is hearsay if it is an out of court statement introduced to prove the truth of the statement.  That isn’t the case with the fighting texts; they’re not being introduced to show that Martin was in a fight on a specific day.  They’re being introduced to show that Martin had experience fighting.  No hearsay there.

Relevance – as discussed elsewhere on this thread, the texts were relevant as circumstantial evidence that the man on top, who fought using an MMA style ground and pound technique, was Martin–and to rebut the same kind of evidence that it was Zimmerman

Prejudice – There’s a catch-all rule that says that evidence may still be excluded if it is more prejudicial than probative.  For example, suppose that in a trial for theft, the witness identified the thief as wearing an unusual pair of orange and green Nike sneakers.  The prosecution then calls as a witness a women who will testify that when the defendant raped her, he took off a pair of orange and green Nike sneakers.  Somewhat relevant to an issue in the case but wildly prejudicial, and should probably be excluded.

It takes that kind of extreme scenario for this rule to apply, though.  It certainly can’t apply when the judge, as Nelson did, allows the exact same type of evidence to come in on the other side–this rule is entirely about fairness.

So the evidence should have come in, whatever basis Nelson thought she had for excluding it.

Thanks to Edgehopper for letting me repost his comment as a blog post (and getting me out from under not having had prepared anything to post today).


NOTICE: “Law of Self Defense” Seminars are now being scheduled for the fall.  For more information, email

Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense, 2nd Edition” now available at and also at as either a hardcopy or in Kindle version, and at Barnes & Noble as hardcopy or in Nook version.

You can follow Andrew on Twitter on @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.


Donations tax deductible
to the full extent allowed by law.