In my post last night I noted a near shouting match between defense attorney Don West and Judge Debra Nelson over whether text messages on Trayvon Martin’s phone regarding fighting were “authenticated.”

Judge Nelson stated that there was no evidence that Trayvon typed the texts even though the messages were on his phone and stored in double-password protected format using phone apps.  Judge Nelson read from the bench from what appeared to be a treatise on evidence.

The defense countered that its computer forensic expert, who testified, was able to track hundreds if not thousand of text messages on the phone and that the flow of conversations indicated it was Trayvon in context.  The defense also vigorously complained that because the State held back evidence and the defense’s request to postpone the trial was denied, the defense did not have the time to track down and call as witnesses the people with whom Trayvon was texting to personally authenticate the conversations.

Although we will not get her ruling until after court starts this morning, it appears that Judge Nelson is on the verge of reversible error if she excludes the text messages on authentication grounds (there may be other grounds to exclude them, I’m just dealing with authentication).

A reader forwarded to me the case of State v. Lumarque, 44 So.3d 171, Fla.App. 3 Dist.,2010, in which a Florida appeals court reversed a trial court’s decision to exclude text messages on authentication grounds.  Here’s the pertinent part of the holding (emphasis mine):

On the appeal, we conclude the trial court abused its discretion by concluding that exhibits 5-9 and 11-15 are not admissible in the trial of this case. The State sought to admit into evidence two sexually suggestive images and eleven text messages between the ex-wife and a boyfriend, found on the defendant’s cellular telephone. The ex-wife testified that prior to the assault by the defendant, he showed her the two images and one of the text messages. There also is evidence in the record from which one might infer the defendant examined the ex-wife’s cellular telephone on the morning or afternoon before the alleged incident when he was alone in the house for a brief period after returning their children back to his ex-wife’s home.

At an in limine hearing, the trial court found the two images and one text message the ex-wife testified to admissible, but concluded the remaining exhibits inadmissible as the ex-wife could not authenticate them. The court erred. The images and text messages were found on the defendant’s cellular telephone, seized pursuant to a search of the defendant’s home through a warrant shortly after the alleged incident. This fact, testified by the State’s forensics expert, is sufficient to authenticate these exhibits. U.S. v. Caldwell, 776 F.2d 989, 1001-02 (11th Cir.1985) (holding that authentication of evidence merely requires a finding that the evidence is what it purports to be). It also is immaterial that the ex-wife could not identify each of the messages being shown to her on the night of the incident. Regardless how these images and text messages might have found their way onto the defendant’s cellular telephone, the State has presented sufficient evidence at this stage that these exhibits constitute evidence of motive. Craig v. State, 510 So.2d 857, 863 (Fla.1987) (stating that evidence of motive is admissible when it would help the jury understand other evidence). Accordingly, they are admissible into evidence at the trial of this case upon the State laying the proper predicates as indicated by this opinion….

As much as the State wants to keep out the text messages, reversible error due to an improper authentication ruling is not the way to go.

Update:  Breaking – Jury will not get to see Trayvon fighting texts


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