Skip to comments.Zimmerman judge needs to read this case on authentication of text messages
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 Martins 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 defenses 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, Im 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 courts decision to exclude text messages on authentication grounds. Heres 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 defendants 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-wifes 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-wifes 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 defendants cellular telephone, seized pursuant to a search of the defendants home through a warrant shortly after the alleged incident. This fact, testified by the States 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 defendants 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.
I’ll say it again, this judge is in over her head.
Remember DD explicitly talking about fighting...go back and see what she said. She knew there was a fight.
She seems to be incompetent and needs to be off the bench.
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.
Looks that way. Peter Principle by a factor of 2. Now, she's obstructing justice.
The media treats it like an old Soviet Show Trial too...
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.)
Again George just said “Yes, sir.” to the bull-dyky judge!
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.
This judge is trying to force a guilty verdict, and is frustrated by the amount of evidence for the defense.
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 ?
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.
The judge is trying to get a conviction, and it ain’t workin’.
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.
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.
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.
Judge just made a bunch of rulings ALL against the defense: no animation, no cell phone texts, no cell phone images of guns.