Zimmerman: BAE, Y U Always Fighting?

The hearing in the George Zimmerman trial ran until 10 pm last night. It ended with the judge kicking the can down the road again, this time on the admission text messages recovered from Trayvon Martin's phone.

The hearing, like the one on computer animation that preceded it, is the best example yet of how the Judge's stubborn insistence that this case proceed to trial before the parties had even finished discovery, was a decision that will come home to bite her if it is necessary for Zimmerman to appeal.

It's not just the parties who are not prepared on the law, it's also the judge. Towards the end of the hearing, she started reading from a book she called Ehrenhart, which is a "horn book" on Florida evidence. It's a book that references Florida evidentiary decisions, kind of like Cliff Notes. She read off some case names cited in the book along with their one paragraph description of the case ruling. The book is intended as a guide to case law dealing with specific rules of evidence. It isn't a substitute for reading the opinions themselves. Had she read them, she would have known: [More...]

The first case she cited, a Maryland case named Griffen v. State pertains to social media webpages like My Space, not text messages. In footnote 13, Griffen says:

We further note that authentication concerns attendant to e-mails, instant messaging correspondence, and text messages differ significantly from those involving a MySpace profile and posting printout, because such correspondences is sent directly from one party to an intended recipient or recipients, rather than published for all to see.

The next case she gets from her book is Elack v. Conn. Had she looked it up rather than just read a blurb about it, she would know that the Conn. Supreme Court granted cert on it, oral argument was held in May, and it's ripe for a decision. It may not be good law after the next court reviews it.

She quotes a Mass. case which again deals with my space type social media. Mass. has a case for dealing with text messages, and it too doesn't say what Griffen and Elack say.

Commonwealth v. Amaral, 2011 Mass. App. LEXIS 107, at *7 (Mass. App. Ct. Jan. 26, 2011: The court reasons that "[t]he actions of the defendant himself served to authenticate the e-mails,” because one e-mail indicated that defendant would be at a certain place at a certain time and the defendant appeared at that place and time, and in another email, defendant provided his telephone number and immediately answered when the investigator called that number);

In fact, most cases make the distinction, likes those cited in Footnote 13 of Griffen:

We further note that authentication concerns attendant to e-mails, instant messaging correspondence, and text messages differ significantly from those involving a MySpace profile and posting printout, because such correspondences is sent directly from one party to an intended recipient or recipients, rather than published for all to see. See Independent Newspapers, Inc. v. Brodie, 407 Md. 415, 423, 966 A.2d 432, 437 (2009)(contrasting emails and instant messages with a “different category of Internet communications, in which users post statements to the world at large without specification,” such as on social networking sites). See also States v. Safavian, 435 F. Supp. 2d 36, 41 (D.D.C. 2006) (reasoning e-mails could be authenticated by comparison by the jury with those e-mails that had already been independently authenticated through the contents or in the email heading itself); Commonwealth v. Amaral, No. 09-P-2284, 2011 Mass. App. LEXIS 107, at *7 (Mass. App. Ct. Jan. 26, 2011) (reasoning that “[t]he actions of the defendant himself served to authenticate the e-mails,” because one e-mail indicated that defendant would be at a certain place at a certain time and the defendant appeared at that place and time, and in another email, defendant provided his telephone number and immediately answered when the investigator called that number); Dickens v. State, 175 Md. App. 231,238-40, 927 A.2d 32, 36-37 (2007) (reasoning text messages received on victim’s cell phone were properly authenticated because the phone number on one message showed that it had come from defendant’s phone and other messages referenced the defendant’s right to see the couple’s minor child and their wedding vows).

When it comes to text messages, courts around the country have been developing a less restrictive test for authentication.

As another case puts it:

Rule 901 “does not erect a particularly high hurdle, and that hurdle may be cleared by circumstantial evidence.” Peter T. Hoffman, Texas Rules of Evidence Handbook, Article IX at 948 (8th ed. 2008-09) (quoting United States v. Chin, 371 F.3d 31, 37 (2d Cir. 2004)). The proponent of evidence does not need to “rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be.” Id. In fact, in performing its gate-keeping function under rule 104, the trial court itself need not be persuaded that the proffered evidence is authentic. Tienda, 358 S.W.3d at 638. Rather, the ultimate question of whether an item of evidence is what the proponent claims is a question for the fact finder. Id. In a jury trial, the preliminary question for the trial court to decide is simply whether the proponent of the proffered evidence has supplied facts that are sufficient to support a reasonable jury determination that the evidence is authentic. Id.; see also Manuel v. State, 357 S.W.3d 66, 74 (Tex. App.—Tyler 2011, pet. ref’d) (“The proponent must only produce sufficient evidence that a reasonable fact finder could properly find genuineness.”).

Other cases with similar rulings:

As another case says: For emails and text messages, the question is one for the jury

Methods of authentication include presenting a witness with personal knowledge of the information (they wrote it, they received it, or they copied it), searching the computer itself to see if it was used to post or create the information, or attempting to obtain the information in question from the actual social media company that maintained the information the ordinary course of their business. Courts largely seem to be erring on the side of admissibility and leaving any concerns about the evidence itself, such as who authored the evidence or whether the evidence is legitimate, to jurors to decide what weight to give that evidence.

Courts distinguish between authentication of social networking evidence and authentication of "e-mails, instant messaging correspondence, and text messages." because it is "sent directly from one party to an intended recipient or recipients, rather than published for all to see.")

There's also People v. Pierre,41 A.D.3d 289, 838 N.Y.S.2d 546, 548-49 (N.Y.App. Div. 2007) (where person sent instant message to screen name and received reply, content on reply supported conclusion that message was sent by defendant, and no evidence was admitted to show anyone else had motive or opportunity to impersonate defendant by using his screen name).

A federal case that is often cited in many jurisdictions is United States v. Safavian, 435 F. Supp. 2d 36, 38 (D.D.C. 2006))

The possibility of alteration does not and cannot be the basis for excluding e-mails as unidentified or unauthenticated as a matter of course, any more than it can be the rationale for excluding paper documents (and copies of those documents). We live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of this nation’s population, and is of particular importance in the professional world. The defendant is free to raise this issue with the jury and put on evidence that e-mails are capable of being altered before they are passed on. Absent specific evidence showing alteration, however, the Court will not exclude any embedded e-mails because of the mere possibility that it can be done.

("The burden of proof for authentication is slight, and the court 'need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so.' ")


If testimony is unavailable, courts have permitted electronic data to be admitted under FRE 901(b)(4), which permits authentication through distinctive characteristics such as the document’s “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”

Florida's authentication rule states:

90.901 Requirement of authentication or identification.--

Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

In the 2012 Florida case State v Symonette,

"Evidence may be authenticated by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances. In addition, the evidence may be authenticated either by using extrinsic evidence, or by showing that it meets the requirements for self-authentication.".... "And, unless #39;clearly erroneous,' the trial court's determination must stand."

In the month old Florida decision in Jean-Philippe v. State, 2013 Fla. LEXIS 1183, 19-20 (Fla. June 13, 2013), the court said:

Finally, some of appellant's statements in the text messages were admissible under HN4section 90.803(18)(a), Florida Statutes (2009), which provides that regardless of the availability of the declarant, "[a] statement that is offered against a party and is . . . [t]he party's own statement" is admissible

In the Florida case of State v. Lumarque, 44 So. 3d 171, 172-173 (Fla. Dist. Ct. App. 3d Dist. 2010. the court said:

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. In all other respects, we summarily affirm the order on appeal.

In the Maryland case of Carpenter v. State and the PA case of In re F.P., 2005 PA Super 220, P 5, 878 A.2d 91, 93 (Pa. Super. Ct. 2005)

[the court] reject[ed] a contention that "it was incumbent upon the Commonwealth [of Pennsylvania] to authenticate [computerized instant messages] by introducing evidence of their source from [an] internet service provider or presenting the testimony of a computer forensics expert".

Unless the state can prove the texts were not sent to or written by Trayvon, since they were on his phone (and needed a double password to delete) the fact that someone else might have used his phone to send them is a matter that goes to the weight the jury gives the evidence. If otherwise admissible as a state of mind hearsay exception, or some other exception, they should come in.

Don West, in oral argument, gave Nelson far more circumstantial evidence than necessary to get these texts in. I won't repeat his arguments, you can watch the last 20 minutes of last night's hearing.

The Judge needs to recess this trial until Monday, so the defense can do the research it needs as it prepares for its final witnesses, and have time to find and subpoena Lavondria and Mike F., Demetrius Martin and Rachel if need be, to have them verify these were texts they received from Martin. If they can't do that, the texts should still be allowed through all the circumstantial evidence that supports Martin sent and received the texts on his phone.

Trayon's texts about fighting are relevant to his state of mind and a hearsay exception. They also go to his physical condition. These are relevant areas for Zimmerman to bring into evidence. It's not character evidence, instances of prior bad acts or reputation evidence. Even if they don't have a live witness to authenticate them, they have an excellent expert who can do that through similarities of content.

I expect we'll see some very tired and cranky lawyers in the morning. Judge Nelson may be tired as well, if she stayed up to make the decisions as she said she would. This trial is running ahead of schedule. There's no time limit. She needs to ease up and give the lawyers time to finish their depositions, prepare their witnesses, research their issues and argue motions during the workday and make timely rulings.

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    Given that there were easily (5.00 / 2) (#9)
    by Anne on Wed Jul 10, 2013 at 07:37:57 AM EST
    identifiable issues, known well before this trial ever got underway, it is appalling to me that the judge is winging it the way she is.

    I have to say, I don't think the state or the judge have distinguished themselves here - if this is the best they can do, the case seems like a colossal waste of time and money.  And honestly, I don't understand how the state didn't know, even before they trial got underway, that they didn't have enough - or if they did, why they pushed on - unless they had set themselves up to have no choice but to keep going.

    And if that's what they did, then they lost their way, and forgot or ignored what it was they were supposed to be doing.

    This latest about the judge, though - I just don't get it.  Is this how they do things in Florida?  It's inexcusable.

    Waste or not depends on the mission (3.60 / 5) (#11)
    by cboldt on Wed Jul 10, 2013 at 07:59:36 AM EST
    If the function of the criminal justice system is to bring criminals to justice, and there wasn't sufficient evidence to find Zimmerman to be a criminal, then the case is, as you suggest, a waste (at best).  In fact, if Zimmerman's use of force was justified, the guy went through the ordeal of an attack, the trauma of using deadly force to defend himself, and then being accused of murder and forced to defend his actions against a state apparatus that wants him in jail for the rest of his life.

    But, if you view the function of the criminal justice system as a tool to appease a potentially violent group, then the "justice for the criminal" aspect isn't relevant, at all.  Making false or unsupported accusations, conducting show trials, and punishing one innocent person is the price that has to be paid for the greater good.  Either the innocent accused is punished, or unknown (at this time) future innocents might be harmed, maybe killed, by violent outbreak.  Viewed this way, the trial is a waste if the accused is not convicted.

    Another function of the criminal justice system is to advance the political careers of those who run its levers of power.


    Others would know better than I, but (5.00 / 2) (#23)
    by Anne on Wed Jul 10, 2013 at 09:07:00 AM EST
    it just seems to me that the system, in general, is not in the best of shape.  I'm sure in many cases, it works, and works well, but to a large extent, whether one does or does not get justice, or a fair trial, or even fair treatment is dependent on how much money one has.

    Which is not to say we don't have public defenders working hard, for little pay, to deliver the best representation they can - but their caseloads are ridiculous, so justice often ends up being reduced to choosing from an array of not-great options - plead guilty, plead to a lesser charge, give up.

    As I've said - I haven't been keeping up with every bit of evidence in this case, haven't been watching or listening to the trial.  If the state's case is as weak as it appears to be, we can only hope that reasonable doubt and the presumption of innocence hold.  All of my questions about the case notwithstanding, I have no interest in seeing someone convicted where the evidence doesn't support that.

    I also don't support prosecutors and judges allowing themselves to be bullied into trials for the sake of appeasement of anyone's agenda; aside from being a perversion of the meaning of "justice," it doesn't account for what happens when the verdict doesn't satisfy that agenda.

    I will be glad when it's over.  And I'm hoping the Aaron Hernandez case does not just slide into that vacancy and take up air time and focus that ought to be on other, larger and more globally important matters.


    In addition to all of that, (5.00 / 1) (#28)
    by Leopold on Wed Jul 10, 2013 at 10:58:01 AM EST
    I've found over the last few years that I've lost all faith and respect for the judicial system, as well as the law profession. I'm sorry, but despite some lofty motivations, in practice and in its tactics and results -- it is just really messed up.

    I have to add it now to the list of things that seem to be broken, dangerous, and divorced from truth and justice in the end.


    that is what has bothered me (5.00 / 1) (#44)
    by TeresaInPa on Wed Jul 10, 2013 at 09:21:46 PM EST
    right from the start, that the (I believe he was) chief of police who did not arrest Zimmerman because he did not think they had adequate grounds for arrest, was fired because Crump and company got the African American community (and their buddies the white liberal knee jerkers)up in arms and made this case all about race.  I saw an interview with the guy last night and he says he is not bitter, but he said that at the time, the city manager didn't even care if they dismissed GZ later as long as they arrested him "now" because they had so much pressure from the community.
    With real racism in the world, with slavery happening right now in this country, with little girls shot for trying to get an education.....for Crump etc.... to cynically exploit this tragic incident and try to make money and a name off of it trivializes the subject.

    Accusations ... (2.80 / 5) (#15)
    by Yman on Wed Jul 10, 2013 at 08:22:01 AM EST
    ... about "appeasing a potentially violent group", "conducting show trials", "advancing political careers", etc. - without so much as the slightest bit of evidence - aren't even slightly convincing.

    Gratuitous assertions may be equally as gratuitously denied.


    Patently False For You To Say (5.00 / 4) (#16)
    by bmaz on Wed Jul 10, 2013 at 08:29:07 AM EST
    ...there is not the "slightest bit of evidence". In fact, there is a lot of evidence from the acts of the mayor and city manager in dealing ex-parte with victims and witnesses, to the actions and pressure by Crump, to the politically calculated removal of Chief Lee and Sanford police, to the PR actions of Corey to the misleading affidavit filed on the 2nd degree charge. But, yet, here you are falsely saying there is none.

    Another point (5.00 / 2) (#19)
    by cboldt on Wed Jul 10, 2013 at 08:37:19 AM EST
     ... I refuse to communicate with Yman for what I hold to be good reasons but won't state because they amount to a personal attack, so first, thank you for pointing out that the persecution angle has supporting evidence, and second, pardon me for taking your remark as a jumping off place for another point.  

    I wasn't even making an accusation.  I was pointing out the truth that different people may view this trial with different lenses.  Some view the prosecution and trial as well brought, normal, no dysfunction at all, etc.  Others view it as persecuting an innocent, when the state knows Zimmerman is innocent.  Persecutions aren't undertaken for no reason, and appeasement and political advantage are historically common reasons for state-sponsored persecution of innocents.


    Patently true (5.00 / 2) (#21)
    by Yman on Wed Jul 10, 2013 at 08:55:09 AM EST
    Speculation, conjecture and accusations are not evidence.

    If you have some actual evidence that these charges were brought for political reasons, you should file a recall petition, a criminal complaint and/or an ethics complaint, as appropriate.


    Ex parte acts (3.50 / 2) (#18)
    by MKS on Wed Jul 10, 2013 at 08:36:16 AM EST
    of the mayor and city manager.  There is no such thing.  They are not a judge in a pending matter.....

    You are grafting on this legal concept where it does not apply.  Much of what a mayor or city manager does is one-on-one--constituent service....It is what they are supposed to do.


    Baloney (none / 0) (#20)
    by bmaz on Wed Jul 10, 2013 at 08:46:40 AM EST
    The latin phrase stands for for or on one side only. In the judicial context it is as you state; however the phrase can certainly be used in other contexts, which is exactly what I did here. And, no, I do not find it an appropriate "constituent service" for elected politicians to inject themselves into a criminal investigation, and certainly not in relation to the critical item of evidence in the form of the key recording and identification of its contents. Which, of course, is exactly what occurred here.

    You used judicial terminology (none / 0) (#22)
    by MKS on Wed Jul 10, 2013 at 09:03:37 AM EST
    where it was not approprite.  Judges are under strict legal guidelines about interactions with counsel in pending matters.  No such legal framework exists for members of the executive branch....and you know that.

    Just a complete distortion of the rules....


    You understand, do you not... (5.00 / 1) (#24)
    by bmaz on Wed Jul 10, 2013 at 10:21:55 AM EST
    ...that there is a language by the name of "Latin", and that it has been around a while? You should also be aware that this language known as "Latin" has little things called "words" and "phrases". One of those is "ex parte" Here is the definition from Merriam-Webster:

    Definition of EX PARTE

    1. on or from one side or party only --used of legal proceedings

    2. from a one-sided or partisan point of view

    Origin of EX PARTE
    Medieval Latin
    First Known Use: 1672

    Please refer to the second definition. I have not distorted anything; you are simply being obtuse as a dodge of the underlying point about the conduct of the political officials as to interjecting themselves into the criminal investigation of this case.


    The phrase ex parte (3.50 / 2) (#25)
    by MKS on Wed Jul 10, 2013 at 10:35:52 AM EST
    is used how often when discussing a mayor talking to a constituent?

    You just pulled out a Latin term used in a very techincal sense in legal proceedings to cover something else...

    Do use Latin often in a non legal context?  


    Non Sequitur? (none / 0) (#31)
    by squeaky on Wed Jul 10, 2013 at 11:18:35 AM EST
    But that is staus quo, no? Ad nauseum,

    mea culpa.  


    It's ad nauseAm, not ad nauseUm... (none / 0) (#32)
    by Anne on Wed Jul 10, 2013 at 11:41:50 AM EST
    Me mordeant, squeaky

    HaHa (none / 0) (#34)
    by squeaky on Wed Jul 10, 2013 at 12:06:59 PM EST
    Back to latin class for me..

    Did I miss something? Is MKS on trial? (3.50 / 4) (#26)
    by Anne on Wed Jul 10, 2013 at 10:40:56 AM EST
    ::rolling eyes::

    If he is (4.00 / 4) (#27)
    by bmaz on Wed Jul 10, 2013 at 10:52:35 AM EST
    Let's hope he brings a dictionary and is not representing himself.

    I think I'll be fine (5.00 / 2) (#41)
    by MKS on Wed Jul 10, 2013 at 02:22:48 PM EST
    if the proceedings are in English and not Latin.

    I appreciate your passion, but my (none / 0) (#29)
    by Anne on Wed Jul 10, 2013 at 11:02:47 AM EST
    point was that perhaps it was a little over-the-top in this instance.

    This is not a courtroom, it's a blog.


    A Legal Blog (3.00 / 4) (#30)
    by squeaky on Wed Jul 10, 2013 at 11:13:46 AM EST
    Although you would have it be a Kaffee Klatch..  

    glad that Bmaz puts up with this crap, and sticks around.

    His or her comments are much appreciated, and thanks to the internets, any language that I do not understand can be readily looked up. It is always a plus to expand my vocabulary.


    Let's hope he gets good counsel (none / 0) (#40)
    by Yman on Wed Jul 10, 2013 at 02:05:29 PM EST
    Hopefully, someone who can interpret the judges thoughts by reading their body language.

    He ought to be fine... (2.00 / 1) (#43)
    by bmaz on Wed Jul 10, 2013 at 05:56:47 PM EST
    ...without an oblique troll as a counsel.

    I think its clear that once the witnesses started (none / 0) (#10)
    by leftwig on Wed Jul 10, 2013 at 07:58:03 AM EST
    testifying that they didn't have a case.  I think this was mostly recognizable after the 2nd discovery dump last July.  I think we are left with 2 choices.  One, the prosecutors, judge, mayor, governor are very incompetent and maybe even corrupt, or there is another driving force compelling them to move the case forward.

    Nelson's bar is too high (5.00 / 1) (#17)
    by Synthesist on Wed Jul 10, 2013 at 08:34:49 AM EST
    I can understand that Judge Nelson has a good reason to protect the character of TM since he is not on trial and can not defend himself, but to raise the bar of his phone data evidence to such a high level that requires proof that only TM is responsible for everything on his phone is really asking too much. Without any evidence or testimony to the contrary, it is only reasonable to believe that TM is responsible for the data generated by the use of his phone.

    And of course, other phone data is widely accepted into evidence without proof of who was actually using or carrying the phone, or even who was at the other end of connected calls:

       a) Phone records that only show the phone number originating a call and only the phone number called.

       b) Cell phone tower pings and any GPS data that may indicate the location and movement of a cell phone.

    By Nelson's high bar, all such phone data should be barred as evidence because there is no proof of who was using and/or carrying the phone. Again, without contrary evidence or testimony, I think that this is an unreasonable restriction.

    When did Martin send the texts in question (5.00 / 1) (#33)
    by oculus on Wed Jul 10, 2013 at 11:55:34 AM EST
    in relation to when defendant made his first call to law enforcement the night he shot and killed Martin?

    Some were months earlier (none / 0) (#36)
    by ruffian on Wed Jul 10, 2013 at 12:22:27 PM EST
    Some regarding buying/selling a handgun were within a couple of weeks.

    Feb 18 and 22, 2012 (none / 0) (#46)
    by Jeralyn on Thu Jul 11, 2013 at 02:57:01 AM EST
    right before he left Miami for Sanford. The .22 was on 2/18 and the S&W .38 was on the 22nd. The text messages are available on the defense website as part of discovery.

    Or one must wonder... (none / 0) (#1)
    by heidelja on Wed Jul 10, 2013 at 06:32:32 AM EST
    ... whether Judge Nelson just feels there really has been no case here and the jury will acquit, and the sooner the better. So really nothing else much matters than placing it in the jury's hands to decide once and for all.

    But that's not right (none / 0) (#3)
    by Teresa on Wed Jul 10, 2013 at 06:38:20 AM EST
    Both the state and the defense deserve the right to argue their case to the end. She's in a rush, I agree, but it's wrong.

    I wouldn't bet against manslaughter at all. In lots of places, like where I live, I've seen guilty on manslaughter result in two or three years. That's far different than Florida's 30 in this case and the jury doesn't know that.


    Here's the catch... (none / 0) (#5)
    by heidelja on Wed Jul 10, 2013 at 07:05:05 AM EST
    ...or should it be, here are the catches.

    1) The text messages are very relevant in the case of murder, but considerably leas so in the case of manslaughter. 2) The jury's decision will be greatly swayed by the judge's instructions eventually given to them. 3) Any such instructions are likely being formulated in the judge's mind as the case proceeds easily making certain arguments more or less relevant in the end. 4) Of course, never to be ignored is the problematic need for the defense to always be mounting the case for an appeal, just in case all does not go according to plan.


    What is the difference (none / 0) (#7)
    by Teresa on Wed Jul 10, 2013 at 07:22:03 AM EST
    in relevancy of murder vs manslaughter if they show Trayon had a propensity to fight, and actually texted about being on the bottom and helpless to get out?

    Jeralyn, if they didn't monitor (none / 0) (#2)
    by Teresa on Wed Jul 10, 2013 at 06:34:58 AM EST
    your site, they sure missed out on free expert help.

    Worth repeating (5.00 / 3) (#4)
    by cboldt on Wed Jul 10, 2013 at 06:45:32 AM EST
    If nothing else, Jearlyn's work on this issue and many others is an almost cut-and-paste for an appeals brief.  So, even if the defense doesn't find the relevant law in time for trial, and even if the court misapplies or ignores the relevant law and precedent, Jeralyn's work remains of potential use to the defense.

    Warning, Speculation! (none / 0) (#6)
    by RickyJim on Wed Jul 10, 2013 at 07:20:39 AM EST
    Judge Nelson thinks if the case ended now, the jury will render a Not Guilty verdict.  She also does not want to make any pro defense rulings that might cause her to get excessive heat.  If I am correct, we can predict how she will rule on these evidentiary matters.

    I got up an hour earlier to hear the (none / 0) (#8)
    by Teresa on Wed Jul 10, 2013 at 07:25:56 AM EST
    other hearing on witnesses and to see if she ruled on these. She said I'll see you at 8:00 as she left. When did they change it to 9:00? I've been trying live feeds everywhere thinking mine was messed up.

    Conservativeish Sheaffer (none / 0) (#12)
    by Teresa on Wed Jul 10, 2013 at 08:10:23 AM EST
    thinks keeping the lawyers so late they can't prepare and keeping out the texts are both denials of due process.

    He said after thinking about it, she may change her mind and allow it.

    I agree with Anne in at the least the judge didn't allow proper time to prepare overall. What was the rush? Trials shouldn't happen this way, from either viewpoint.

    She ruled no texts. Oops, she'll (none / 0) (#13)
    by Teresa on Wed Jul 10, 2013 at 08:13:52 AM EST
    be sorry.

    It's not reversible error unless . . . (5.00 / 1) (#14)
    by cboldt on Wed Jul 10, 2013 at 08:17:34 AM EST
    The only way any ruling against the defense becomes reversible is if Zimmerman is convicted.

    This isn't the only ruling she's made that insures reversing a conviction and ordering a new trial, if there is a conviction in the first place.


    Two birds with one stone (none / 0) (#42)
    by cboldt on Wed Jul 10, 2013 at 03:14:24 PM EST
    I believe this disposes of the sanctions motion, as well.  The evidence is not admissible, so there is no procedural prejudice to the defense.

    cboldt: (5.00 / 0) (#45)
    by Aunt Polgara on Wed Jul 10, 2013 at 10:07:58 PM EST
    I believe this disposes of the sanctions motion, as well.  The evidence is not admissible, so there is no procedural prejudice to the defense.

    But isn't part of the reason that the phone data isn't admissible is because the defense didn't have an opportunity to properly authenticate it?