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Zimmerman judge needs to read this case on authentication of text messages
legalinsurrection.com ^ | 7-10-2013 | William A. Jacobson

Posted on 07/10/2013 5:55:51 AM PDT by servo1969

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.


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Government; News/Current Events; US: Florida
KEYWORDS: banglist; martin; texts; zimmerman
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1 posted on 07/10/2013 5:55:51 AM PDT by servo1969
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To: servo1969; Toespi; Uncle Chip; RummyChick

I’ll say it again, this judge is in over her head.


2 posted on 07/10/2013 5:59:43 AM PDT by onyx (Please Support Free Republic - Donate Monthly! If you want on Sarah Palin's Ping List, Let Me know!)
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To: servo1969
Between his facebook and DD, we have plenty of evidence that this is Tray's pattern. Like it or not....patterns give us away.

Remember DD explicitly talking about fighting...go back and see what she said. She knew there was a fight.

3 posted on 07/10/2013 6:00:23 AM PDT by Sacajaweau
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To: servo1969

She seems to be incompetent and needs to be off the bench.


4 posted on 07/10/2013 6:00:24 AM PDT by freekitty (Give me back my conservative vote; then find me a real conservative to vote for)
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To: servo1969

Why should the judge bother to read about it? She’s not interested in the truth. Rather the opposite, it seems. It’s clear that she’s becoming increasingly angry because the prosecution case is so weak and the defense is doing so well despite her best efforts.

How this is different from a Soviet trial, I can’t see.


5 posted on 07/10/2013 6:00:46 AM PDT by ottbmare (The OTTB Mare--now a Marine Mom)
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To: onyx
I’ll say it again, this judge is in over her head.

Looks that way. Peter Principle by a factor of 2. Now, she's obstructing justice.

6 posted on 07/10/2013 6:04:03 AM PDT by TADSLOS (The Event Horizon has come and gone. Buckle up and hang on.)
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To: ottbmare
How this is different from a Soviet trial...

The media treats it like an old Soviet Show Trial too...

7 posted on 07/10/2013 6:06:43 AM PDT by GOPJ (In the kingdom of the blind, the one eyed man is a dangerous extremist.. Greenfield)
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To: TADSLOS

Absolutely.


8 posted on 07/10/2013 6:12:44 AM PDT by onyx (Please Support Free Republic - Donate Monthly! If you want on Sarah Palin's Ping List, Let Me know!)
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To: onyx
"I’ll say it again, this judge is in over her head."

That's why she was selected in the first place.

(The only ones who seem to be competent and operating with at least half a brain are Zimmerman's attorneys. While Florida probably thought it could avoid rioting by kicking the can down the road, this has likely backfired in a big way. Even if there aren't any race riots, Florida has demonstrated that it's really no more than a banana republic with it's court system.)

9 posted on 07/10/2013 6:13:44 AM PDT by Sooth2222 ("Suppose you were an idiot. And suppose you were a member of congress. But I repeat myself." M.Twain)
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To: onyx

Again George just said “Yes, sir.” to the bull-dyky judge!


10 posted on 07/10/2013 6:15:13 AM PDT by miss marmelstein ( Richard Lives Yet!)
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To: servo1969

Well Floriduh.

The Judge should have given sanctions against the State
for WITHHOLDING EXCULPATORY and RELEVANT EVIDENCE
BUT instead affirmed she runs a kangaroo court.

Then, she went after Zimmerman personally.


11 posted on 07/10/2013 6:17:05 AM PDT by Diogenesis
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To: onyx
I’ll say it again, this judge is in over her head.

This judge is trying to force a guilty verdict, and is frustrated by the amount of evidence for the defense.

12 posted on 07/10/2013 6:19:59 AM PDT by Fido969
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To: servo1969

I cant help thinking, being as the prosecution and de judge are doing such overtly and BLATANTLY absurd things - are these a setup to have something later reversed or thrown out ?


13 posted on 07/10/2013 6:20:55 AM PDT by PraiseTheLord (have you seen the fema camps, shackle box cars, thousands of guillotines, stacks of coffins ~)
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To: PraiseTheLord

When George is found Not Guilty, the prosecutors, the State, AND THE JUDGE can all just shrug their shoulders and claim; “We did the best we could to convict Zimmerman, but oh well...”

Maybe that attitude will fool the racists and they won’t burn down the ghettos.


14 posted on 07/10/2013 6:24:07 AM PDT by Responsibility2nd (NO LIBS. This Means Liberals and (L)libertarians! SaIf betwee Bidenme Thing. NO LIBS!!)
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To: servo1969

The judge is trying to get a conviction, and it ain’t workin’.


15 posted on 07/10/2013 6:25:46 AM PDT by GenXteacher (You have chosen dishonor to avoid war; you shall have war also.)
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To: servo1969

I’ve lent my phone out to anyone wishing to send a text message thousands of times. Hasn’t everyone?

Give me a break here.

Evidence with held and probably deleted by the defense, this thing looks to me like somebody on the prosecutorial side needs to serve some jail time.

When this trial is over an investigation should be made about who erased messages and who has hidden evidence in this Kangaroo court.


16 posted on 07/10/2013 6:26:31 AM PDT by Venturer
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To: freekitty

She may be incompetent,

but what I see is outright ideological CORRUPTION.

She wants Zim convicted to send a message that

YOU SHALL _NOT_ DEFEND YOURSELF FROM THUGGERY.


17 posted on 07/10/2013 6:26:33 AM PDT by MrB (The difference between a Humanist and a Satanist - the latter admits whom he's working for)
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To: freekitty
She seems to be incompetent and needs to be off the bench

She may also be incompetent but there's little doubt she's totally prejudiced for the state. If Z is found guilty, which appears less and less likely, the verdict will be overturned on appeal.

18 posted on 07/10/2013 6:27:04 AM PDT by Larry381 ("Those who cannot remember the past are condemned to repeat it.")
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To: Responsibility2nd

Judge just made a bunch of rulings ALL against the defense: no animation, no cell phone texts, no cell phone images of guns.


19 posted on 07/10/2013 6:27:23 AM PDT by C210N (When people fear government there is tyranny; when government fears people there is liberty)
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To: onyx

Kangaroo Court


20 posted on 07/10/2013 6:27:49 AM PDT by sr4402
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To: ottbmare
How this is different from a Soviet trial, I can’t see.

This one is allowing defense witnesses, and is being televised for all to see. Otherwise...

21 posted on 07/10/2013 6:28:15 AM PDT by JimRed (Excise the cancer before it kills us; feed &water the Tree of Liberty! TERM LIMITS, NOW & FOREVER!)
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To: C210N

I saw this, and it succinctly describes the prosecutions strategy:

“the prosecution is simply trying to show reasonable doubt as to Zimmerman’s innocence.”


22 posted on 07/10/2013 6:28:27 AM PDT by C210N (When people fear government there is tyranny; when government fears people there is liberty)
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To: servo1969

I know virtually nothing about legal procedures, so when you say, “reversible error”, what does that mean?


23 posted on 07/10/2013 6:29:22 AM PDT by Humal
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To: Venturer
I’ve lent my phone out to anyone wishing to send a text message thousands of times. Hasn’t everyone?

Nope.

24 posted on 07/10/2013 6:30:11 AM PDT by JimRed (Excise the cancer before it kills us; feed &water the Tree of Liberty! TERM LIMITS, NOW & FOREVER!)
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To: Larry381

I personally feel she and Angela Corey may be more than just friends and the visual on that is sick making.


25 posted on 07/10/2013 6:30:50 AM PDT by liberalh8ter (The only difference between flash mob 'urban yutes' and U.S. politicians is the hoodies.)
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To: Larry381

Depends on politics.


26 posted on 07/10/2013 6:31:15 AM PDT by freekitty (Give me back my conservative vote; then find me a real conservative to vote for)
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To: MrB; Larry381

http://theconservativetreehouse.com/2013/07/05/thats-my-boy-now-wheres-my-money-wheres-my-benjamins/


27 posted on 07/10/2013 6:32:04 AM PDT by freekitty (Give me back my conservative vote; then find me a real conservative to vote for)
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To: servo1969

The consistent stance of the court seems to be that Trayvon Martin is the defendant with a presumption of innocence and that George Zimmerman is a prosecutor trying to prove Martin’s guilt in order to justify self-defense.


28 posted on 07/10/2013 6:32:21 AM PDT by wideawake
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To: Humal
...when you say, “reversible error”, what does that mean?

The judge f****d up, and the verdict is reversed by a higher court? That's my semi-edumacated guess.

29 posted on 07/10/2013 6:33:13 AM PDT by JimRed (Excise the cancer before it kills us; feed &water the Tree of Liberty! TERM LIMITS, NOW & FOREVER!)
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To: liberalh8ter

Don’t forget the crazy Medical Examiner Valeria Rao. She’s under investigation for very bizarre behavior. The only reason she has that job is government officials, the same people that are involved in the Zimmerman case.


30 posted on 07/10/2013 6:34:36 AM PDT by Azeem (There are four boxes to be used in the defense of liberty: soap, ballot, jury and ammo.)
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To: C210N

Really? This morning?

Were the jurors in court? Have they at least seen and heard the defense arguments for cell phone records?

I hope so. The very fact the judge wants to deny the jurors relevant evidence is enough to provoke the jury into making the right call here.

Not Guilty.


31 posted on 07/10/2013 6:35:17 AM PDT by Responsibility2nd (NO LIBS. This Means Liberals and (L)libertarians! SaIf betwee Bidenme Thing. NO LIBS!!)
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To: Azeem

I wasn’t aware of that!


32 posted on 07/10/2013 6:35:52 AM PDT by liberalh8ter (The only difference between flash mob 'urban yutes' and U.S. politicians is the hoodies.)
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To: Responsibility2nd

Wondering how long my tagline has been screwed up??? Fixing it.


33 posted on 07/10/2013 6:37:41 AM PDT by Responsibility2nd (NO LIBS. This Means Liberals and (L)libertarians! Same Thing. NO LIBS!!)
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To: sr4402

Yep.

Praying faithfully for GZ.


34 posted on 07/10/2013 6:37:51 AM PDT by onyx (Please Support Free Republic - Donate Monthly! If you want on Sarah Palin's Ping List, Let Me know!)
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To: servo1969

I’m a little behind on the whole text argument here. Are Martin’s texts just now being turned over?


35 posted on 07/10/2013 6:38:19 AM PDT by KC_Conspirator
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To: liberalh8ter

http://www.news4jax.com/news/more-complaints-on-jacksonville-medical-examiner-dr-valerie-rao/-/475880/20640256/-/rurvpcz/-/index.html

Complaints for over 10 years and she’s the Jacssonville ME.


36 posted on 07/10/2013 6:39:44 AM PDT by Azeem (There are four boxes to be used in the defense of liberty: soap, ballot, jury and ammo.)
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To: MrB

It’s a form of gun control.

What good is concealed carry if you’re being beaten and fear for your life and you can’t use the weapon to defend yourself?

Mostly it was an election year attempt to motivate blacks and make them feel they are oppressed, etc. to get them to vote. Motivate the base.


37 posted on 07/10/2013 6:41:32 AM PDT by TigerClaws
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To: servo1969

If Zimmerman is convicted, the defense can use this judge’s rulings in their appeal.

Anyway, she did allow the defense to use the animation piece in their closing. Dis-allowing the incriminating text messages of Martin was a huge blunder by the judge and may come back to haunt her.

All that said, it would take an act of the devil for that jury to convict Zimmerman.


38 posted on 07/10/2013 6:42:08 AM PDT by District13 (I miss my country!)
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To: servo1969

The defense did submit this as part of their motion. I heard the judge reference it this morning. In her verbal “sustained” she gave no reason.


39 posted on 07/10/2013 6:52:32 AM PDT by Solson (The Voters stole the election! And the establishment wants it back.)
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To: servo1969

The defense did submit this as part of their motion. I heard the judge reference it this morning. In her verbal “sustained” she gave no reason.


40 posted on 07/10/2013 6:52:33 AM PDT by Solson (The Voters stole the election! And the establishment wants it back.)
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To: Responsibility2nd

Jurors are not typically in court for procedural arguments and rulings as the matters heard are outside the case facts until such time as they are admitted into evidence and allowed to be properly presented.


41 posted on 07/10/2013 6:56:07 AM PDT by T-Bird45 (It feels like the seventies, and it shouldn't.)
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To: servo1969

There are very few positive things coming out of this trial.

However, it does reinforce my firm belief that we have a show trial system where both sides attempt to get the best “half truth” heard by the jury and the thing on the bench is just a tool of government abuse.

I hope if there is a riot after the verdict the judge gets out in the street between the two warring factions to try and stop it. Her deliberate and obvious attempts to subvert justice would be quickly rewarded.


42 posted on 07/10/2013 7:10:13 AM PDT by Wurlitzer (Nothing says "ignorance" like Islam! 969)
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To: servo1969

This judge is either grossly incompetent or, in the tank for the Obamabots, 100%. She should be removed from the trial!! Also her manner is unbecoming to a respected member of the bench!!! She belongs with all the hating race baiters in the Obama/Martin camp!!!


43 posted on 07/10/2013 7:14:47 AM PDT by JLAGRAYFOX ( My only objective is to defeat and destroy Obama & his Democrat Party, politically!!!)
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To: onyx

They were on TM’s phone, so they are his. Let the jury decide if they are authenticated or not.

On HIS phone = belong to him in some way, shape, or form.


44 posted on 07/10/2013 7:15:14 AM PDT by xzins (Retired Army Chaplain and Proud of It! True supporters of our troops pray for their victory!)
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To: servo1969

This nitwit is a judge?


45 posted on 07/10/2013 7:16:57 AM PDT by Logical me
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To: onyx

I think she is just totally prejudiced for the prosecution.


46 posted on 07/10/2013 7:27:50 AM PDT by Georgia Girl 2 (The only purpose of a pistol is to fight your way back to the rifle you should never have dropped.)
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To: District13

It could be that the judge knows the state did not make its case and that acquittal is the likely outcome. Perhaps she is not giving the defense anything more to avoid giving Obama’s ignorant base any more justification for commencing the rioting they have been dutifully instructed to do by the lib politicians and media. Obama’s base is too stupid to comprehend rules of evidence. All they would take away from a ruling for the defense is that whitey judge let whitey racist defense counsel for whitey racist defendant defame choirboy young angel Trayvon. Sure, it could be grounds for appeal, but she may be willing to take the chance. Perhaps I’m giving her more credit than is due her.


47 posted on 07/10/2013 7:31:30 AM PDT by KevinB (A country that would elect Barack Obama president twice is no longer worth fighting for.)
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To: servo1969
The judge has her orders from DC.Osama Obama’s “son” will be vindicated...regardless of cost.
48 posted on 07/10/2013 7:33:57 AM PDT by Gay State Conservative (The Civil Servants Are No Longer Servants...Or Civil.)
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To: Logical me
This nitwit is a judge?

She's not a Latina but she's certainly wise. (end sarcasm)

49 posted on 07/10/2013 7:35:23 AM PDT by Gay State Conservative (The Civil Servants Are No Longer Servants...Or Civil.)
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To: Responsibility2nd

I think normally, while they’re arguing about what can and can’t be admitted, they excuse the jury; wouldn’t be much point otherwise. Course this judge is so incompetent she might have done it in front of them.


50 posted on 07/10/2013 8:35:33 AM PDT by Still Thinking (Freedom is NOT a loophole!)
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