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Zimmerman judge needs to read this case on authentication of text messages

Zimmerman judge needs to read this case on authentication of text messages

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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Sure the judge would want to avoid a reversible error, but based on the way she was behaving and her comments, wouldn’t it seem she isn’t going to allow the texts and photos?

Listen up, Judge!

If the judge doesn’t allow this in, then that’s a crock. Think about all of the people that have been busted sexting under aged kids on their phone, sending nudes etc. All they have to claim is that they didn’t send the messages and they’re off the hook? I don’t think it’s that easy.

Does it matter that we are talking about the dead victim in the current case vs the alive accused in the previous one?

    Uncle Samuel in reply to GRuggiero. | July 10, 2013 at 7:41 am

    We are talking about another man at risk to lose his life.

    Evidence here supports Defense’s claims of being attacked.

      GRuggiero in reply to Uncle Samuel. | July 10, 2013 at 7:49 am

      I am not sure evidence here supports Defense’s claims of being attacked. The pictures and testimony in this case does that. The victim’s prior texts, etc has no bearing on this case, IMO. Much like the promiscuity of a woman has any bearing on her subsequent rape.

      I think the drug use supports his acting suspicious, when coupled with the toxicology report, thus justifying the first call by GZ and the subsequent following him for the police.

        Irony Tag in reply to GRuggiero. | July 10, 2013 at 7:59 am

        The judge is letting in evidence to the physical capabilities and fighting capabilities and there are jury instructions to that effect (hence the testimony by the gym owner). To not allow in testimony on Martin’s capabilities would be prejudicial.

        Uncle Samuel in reply to GRuggiero. | July 10, 2013 at 8:54 am

        Fighting texts = Supports idea that Trayvon was looking to make himself a name as a street fighter, wanted to draw blood.

        Drugs = both codeine and marijuana have been correlated with paranoia and random, unprovoked violence.

        Gary94578 in reply to GRuggiero. | July 11, 2013 at 12:49 am

        Zimmerman is saying he was punched in the nose, made to bleed from said nose and then overpowered and had no other way to stop Martin then a gun. Evidence that Martin was a good, experienced fighter and pictures showing his physical attributes are evidence. The kid was buff, good strong arms and chest, no fat. He was able to fight above his weight class.
        Martin texts about punching someone in the nose, making them bleed and then saying he needed to hit them more for more blood, Plus Martin is in withdrawal from chronic marijuana use, and likely extremely irritable and quick to anger.
        The prosecution brought in evidence of Zimmerman’s fighting ability and mma training, We need to know what Zimmerman was up against. If it was somehow impossible for Martin to do as described , that would be important.

    BrianMacker in reply to GRuggiero. | July 10, 2013 at 7:48 am

    Don’t you mean the dead criminal attacker?

    Observer in reply to GRuggiero. | July 10, 2013 at 7:58 am

    Seems pretty clear cut. Considering that’s a 2010 case, one would think Nelson would be aware of it. Although given the level of competence she’s demonstrated to date, maybe not.

    Uncle Samuel in reply to GRuggiero. | July 10, 2013 at 8:32 am

    A claim of Self-Defense is in itself an accusation against the deceased of felony assault with intent to commit grievous bodily harm with malice.

    All evidence to that effect is pertinent to the Defense.

    mariner in reply to GRuggiero. | July 10, 2013 at 11:52 am

    The victim is not dead; the victim is on trial.

StrictlyLogical | July 10, 2013 at 7:42 am

I don’t understand what the problem is with a witness being in court during other testimony when this whole trial could be viewed at home live from his couch. Can anyone explain?

    Humphreys Executor in reply to StrictlyLogical. | July 10, 2013 at 8:52 am

    One big problem: If a group of witnesses are biased toward one side, letting them hear each others accounts enables them to collectively “get their story straight.”

    kentuckyliz in reply to StrictlyLogical. | July 10, 2013 at 8:54 am

    I was thinking about that myself. There is hullaballoo about Donnelly but any witness could watch this start to finish plus all the hearings (that the jury doesn’t see) on the streams provided here at Legal Insurrection ™.

    In fact, it sounds like a legal insurrection.

This line of reasoning would naturally follow to exonerate anyone found with illegal images or files on any electronic device in their possession, ie, a hard drive full of child porn or NSA wiretaps. And, if it were the State attempting to use this info and connect it back to the defendant, I could see a basis for excluding it via that reasoning of authentication, or knowing possession, etc.

But this is information related to Trayvon, and not the defendant. Would not it be better to let the jury decide in such matters?

Let’s say the judge denies all defense motions, as she will.

Can the defense appeal those rulings in time to get her slapped back into line BEFORE the jury gets the case ?

If not, then what ? Can the appeals court order the case re-opened after deliberations have begun ? Or must it wait for verdict and (possible) mistrial ?

NavyMustang | July 10, 2013 at 7:54 am

I’m not an attorney, so I could be making a blindingly obvious comment, but is anyone else bothered by the nagging feeling that this case is ass backwards? I mean, the prosecution is acting like a classic defense team, while the defense is more like a prosecutor.

The defense consistently brings clairity to the argument, while the prosecution only wants to fog up the window and obfuscate.

    Uncle Samuel in reply to NavyMustang. | July 10, 2013 at 8:05 am

    Brilliant observation well-stated.

      Uncle Samuel in reply to Uncle Samuel. | July 10, 2013 at 8:10 am

      I would only add that the Court seems to be assisting the Prosecution in covering up the truth: Trayvon was involved in drug use, fighting, had been suspended from school, committed violence against a bus driver, possibly burglary – as his school records show.

    Immolate in reply to NavyMustang. | July 10, 2013 at 8:22 am

    If you people would follow the law, the prosecution is simply trying to show reasonable doubt as to Zimmerman’s innocense. I think they might be close.

      moonstone716 in reply to Immolate. | July 10, 2013 at 8:28 am

      LOL! Thanks, I needed that.

      kentuckyliz in reply to Immolate. | July 10, 2013 at 9:00 am

      IKR and that is not their burden. Troof is, the jury doesn’t need to know exactly what happened, and that can’t be established anyway. The more vehemently the prosecution asserts a very specific story (and keeps changing it to customize it to today’s witnesses), the bigger the opening through which to drive the truckload of reasonable doubt.

    Pauldd in reply to NavyMustang. | July 10, 2013 at 9:02 am

    absolutely! That has been my impression all along

    DerHahn in reply to NavyMustang. | July 10, 2013 at 9:19 am

    IANAL either but I suspect that the last hope of the prosection for a conviction is to kick up enough sand to confuse the jury into rejecting GZ’s claim of self-defense and finding him guilty of manslaughter.

One of the biggest things bothering me about this case is that prosecution got to put on their case for two weeks, rarely staying in court past 6 or 6:30. The defense has only had two full days to put on their case and the judge is keeping them until 10:00pm, severely handicapping their ability to be fully prepared for the next day of testimony.

She’s going to split the difference, let in the already out there Donnelly testimony and deny the defense the important texts and photos.
The stupid judge thinks that will look to be “fair”
She signaled that just before she got off the bench when she reminded the defense of the two offenses regarding sequestration

It is quite possible that Judge Nelson, after having the opportunity to “sleep on it” will make the legally correct finding and allow the texts into evidence, with a stern warning on how they can be used.

I’m curious as to whether bad calls in favor of the prosecution or prosecutorial misconduct ever gets investigated if there is an acquittal. What about a hung jury? Directed verdict?

    Exiliado in reply to Immolate. | July 10, 2013 at 8:46 am

    That is an issue that has been bugging me all along.

    Even if Zimmerman is acquitted, as it should be, what about the rest of the citizens of Florida?

    Are we going to be subject to this level of abuse by state prosecutors?

    How do we know that any one of us is not to be the next victim of unlawful, unethical prosecution?

    Are the state attorneys immune?
    Do they have carte blanche to go after us?


After dragging me through multiple legal angles we were finally able to drag out the TRUTH through FOIA. Regardless of eventual disposition of this case I hope folks will have at least read the ASTOUNDING level of deceit in this trial.

The corruption in this case is beyond the scope of common understanding. I damn sure had no idea people were this far over the ideological edge they would be willing to watch a guy put in jail for life just to protect their scheme.

IANAL, but wouldn’t any texting activity during and after TM’s call to his girlfriend be outside of the authentication issue because all testimony affirms that he was alone with his phone? Are their any relevant messages from that point on? Did anyone ever get GPS data from either phone?

Does anyone remember Dee Dee nee whateverlyingnameandageshemakesupthisweek nee Diamond’s testimony on cross?

Asked (or maybe that is axed) why did she not call the police when the phone disconnected and she did not get an answer when she called Trayvon back

She said.. “JUST A FIGHT”.

Now I don’t know about the rest of the world, but when a friend of mine is potentially in a physical fight with some creepy person my response would not be it was “just a fight”. Unless that friend belongs to some fight club or the WWF.

When I have found out that brothers, nephews, nieces have been involved in or potentially involved in a fight I’ve had a reaction that would rival the hysterical neighbor’s 911 call.

This indicates that Trayvon getting into a fight was neither unusual or nor unexpected. Remember this was a girl who was texting and calling Trayvon ALL day long. She had been on the phone with him several hours this day. These calls were disconnected several times during the day because of a loss of service. They reconnected the call each time. At the end of the day with the abrupt end of the call after he heard a confrontation between TM and GZ and yet Dee Dee acted as if it was nothing. No reason to sound an alarm, no reason to be upset or concerned.

So the text messages about fighting and experience fighting should go to show that TM was not “running for his life” from some “creepy ass cracker”. It shows (1) ability or skill at fighting (2) lack of aversion or avoidance of fighting.

Did TM deserve to die? Nope. But rarely does someone deserve to die when they take specific actions that end up causing their death.

txantimedia | July 10, 2013 at 8:34 am

The question of who sent the texts is a fact question. Fact questions are the purview of the jury. The prosecution is free to argue that there’s no proof that Trayvon sent them despite the hidden, password protected apps, and the juror is free to laugh at their latest attempt at silliness.

If the judge does not allow the text messages, she will be reversed. In fact, if I were West and O’Mara, I would seek an emergency appeal ruling from the 5th District Court and get her overturned before proceeding with the trial.

I have a question. Is the issue with the judge really authentication? If the defense could quickly get a linguistics expert to read all the texts and confirm they are written by the same author, would she allow them? (I guess it would take some time to read them, write a report and be deposed by the prosecution but I assume there’s an expert out there who could work fast.) Is this just an excuse to disallow them or do they have this option?

From what I heard last night, it seems authentication is her only issue. Is it, or would there be other objections?

txantimedia | July 10, 2013 at 8:40 am

It’s 8:40 Flordia time. WTF????

BrianMacker | July 10, 2013 at 8:44 am

Usually when that happens the victim of the impersonation will get on their device or account and send out messages to contacts that they were spoofed. Their is no motive for these kinds of messages either. I could understand a quick “I like dick” spoof message, but why get into these kinds of details, and plus they have direct testimony that he was in fights from the star witness for the prosecution.

Uncle Samuel | July 10, 2013 at 8:44 am

Again, a Defense claim of Self-Defense has built into itself an accusation against the deceased of felony assault with intent to commit grievous bodily harm with malice.

All evidence to that effect is pertinent to the Defense.

For the court and prosecution to take actions prevent the Defense from proving its case violates George Zimmerman’s FL and US Constitutional rights.

    Uncle Samuel in reply to Uncle Samuel. | July 10, 2013 at 8:48 am

    This has definitely become a Civil Rights case, just not the way the Crump, Obama, Sharpton, Corey, Bondi, et al intended.

    They themselves have committed flagrant violations, criminal violations, and have became the civil rights violators.

Perhaps if the “Defense” had not put the judge through the tendentious waste of time that was invested in the “graphic re-designer, crime scene synthesizer”, she might have been more receptive to the subtleties of subsequent arguments.
Did anyone, other than the Prosecution prepare for that testimony? Can anyone claim that the “animation” was necessary for Zimmerman’s case?

    Uncle Samuel in reply to geTaylor. | July 10, 2013 at 9:00 am

    The animation can show the logic of the self-defense case backed up by Timeline.

    The very best indications of George Zimmerman’s mindset and proof of his story are these pieces of DIRECT TESTIMONY:

    1. Officer Serino: “We now have a video of the fight.”

    Zimmerman: “Thank God. I hope they got it all.”

    2. The conversation with the female police officer, when Zimmerman said, “It’s always wrong to kill another person.”

    The police woman had to tell George it was not immoral to defend yourself if someone is trying to kill you.

    3. George Zimmerman bought the firearm because of the pit bull dogs in the neighborhood, not to apprehend or harm the burglars.


jayjerome66 | July 10, 2013 at 8:47 am

Is it reversible error if a judge doesn’t allow the prosecution adequate time to prepair their case, and find or depose witnesses, etc., thereby preventing their client a fair trial? If so, any citations?

jayjerome66 | July 10, 2013 at 8:47 am

Sorry.. That’s allow the defense..

Embarrassed to ask, but was Nelson elected or appointed?

    remedy in reply to Judyt2013. | July 10, 2013 at 8:57 am

    Appointed by Gov. Jeb Bush, I believe.

    Ragspierre in reply to Judyt2013. | July 10, 2013 at 12:32 pm

    Both. She ran unopposed, I believe. She has had a 72% approval, according to some bio stuff.

      Matt in FL in reply to Ragspierre. | July 10, 2013 at 12:35 pm

      Yeah, I’m pretty sure the way it works are they are initially appointed, and thereafter at whatever period years, it shows up on the ballot as “Shall Judge Debra Nelson be retained in office? Y/N”

      72% approval rating is about normal, because most people vote “yes” unless there’s a case like this that gives them a specific articulable reason to vote “no.”

Rather than referring to the lady as “Judge Debra Nelson”, wouldn’t it be more accurate to say “senior member of the prosecuting cabal”

[…] which was one of the arguments last night.  The Judge did indicate she reviewed the Lumarque case in which a trial court was reversed for failing to allow text […]

GZ never told Osterman that TM grabbed the gun Osterman said that he didn’t take notes and if a mistake was made that was different from GZ’s it was his (Osterman) fault.

I don’t like this, but it sure looks like a guaranteed retrial in the event hell freezes over and Zimmerman actually gets convicted in this sham.

[…] (Legal Insurrection) 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.” […]

Interesting | July 10, 2013 at 4:27 pm

The case you bring deals with a different issue. The text messages/cell phone photos in the Lumarque case dealt with motive, and thus the mere fact that the sexually explicit messages were present and could be viewed on the phone (regardless of authorship) evidenced motive for the domestic dispute. Here authorship = relevance, thus they must be authenticated in regards to who sent the texts… Fine distinction, but important.

It would be a new world if you can argue that anything on your cell phone, computer, facebook, twitter etc could might have been put there by someone else.
Was someone setting Martin UP?

You guys are reading what you want from the Lumarque Case. It clearly states that texts and phone images were part of the context between the parties to the case, and that there was evidence that the defendant had examined the phone contents the day before the incident, therefore, it makes sense that contents on the phone are relevant to the case. I don’t think anyone believes George examined Trayvon’s phone prior to the incident — if he had, wouldn’t that put a whole different spin on this case?

One more note: without anyone to testify as to context, it is just as likely that Trayvon was discussing RPG or other violent video game play (just like 50% of all kids today), and may have been simultaneously having a voice conversation with the other person that would be necessary to understand the meaning of the messages. I’ve seen kids play video games, and communicate with other players in the context of the game by phone and text at the same time. A text that reads, “You should stop punching” (or whatever) would mean something completely different if they were engaged in video game play.

If someone wants to add 2 more weeks to the trial to introduce new evidence, debate it, philosophize about it, get expert witnesses on social media, game play, and modern youthful behavior, then OK, but there is no need: No one knows what George and Trayvon said to each other or who started the altercation, or whether George was truly in fear for his life. These 3 things need to be proven in order to convict, and the plain facts are, none of that is possible. Guilty or not, we will never know — therefore George gets off on Reasonable Doubt. Case Closed.