May 28 Court Hearing

[annoyedbeyond]

Nelson had to implicitly find that Shellie is on the defense's witness list, after being told that she is not.  She did not tell de la Rionda to use his Chapter 27 power.  I'd appeal just on the technicality that the state has not filed paperwork under Chapter 27.  Either that, or Nelson has assumed the power to dictate the defense's witness list.

Technically though, wasn't she? I thought they said her name was on one of these big ol' blanket lists--the kind where MoM put every single person he might ever possibly have an interest in talking to.

True, she's not now on the list, but she was on the list.

Or...you know, something.

[nomatter_nevermind]

And of the Miami schools system's own police department is a separate jurisdiction from both Miami Gardens and Metro Dade.

I couldn't remember if O'Mara's request was limited to information in school records. Listening to that part of the recording, I see that it was (1:03:00).

[nomatter_nevermind]

I thought they said her name was on one of these big ol' blanket lists--the kind where MoM put every single person he might ever possibly have an interest in talking to.

Jeralyn explained this on the blog.

How is it possible that the defense says it did not list her and the state says it did? The state says it listed her as a potential witness, after which the defense filed a witness list that included (the standard refrain) that it reserves the right to call “any witness identified through State’s discovery not otherwise disclosed herein”. I'm no expert on Florida deposition rules (Florida is one of the few states that allow pre-trial depositions in criminal cases) but I think it's an incredible stretch to claim the defense, by reserving its right to call a witness named by the state (whom the state could decide not to call) is a listed defense witness.

ETA: Judge Nelson seemed to accept the state's argument without explicitly commenting on it.

[nomatter_nevermind]

And from another source:

Circuit Judge Debra Nelson, at a hearing on motions ahead of the trial, also ruled that lawyers can't mention Trayvon's school records, past fights, marijuana use, ownership of gold teeth, or any photos or text messages found on the teen's phone.

Nelson said she reserves the right to change the ruling during the trial if lawyers open the door to such issues. However, she said that she can't imagine that any of these issues would be relevant.

http://www.usatoday.com/story/news/2013/05/28/trayvon-martin-testimony-trial/2365367/

The 'can't imagine' remark was specifically about the opinion evidence (5/28 Hearing, 1:09:03-10:01). Ironically, that isn't even one of the issues on the list.

[MJW]

Jeralyn explained this on the blog.

ETA: Judge Nelson seemed to accept the state's argument without explicitly commenting on it.

If that's her reason, I believe it can be solved by formally striking Shellie from the defense witness list, as happened in  Huet v. Tromp, 912 So. 2d 336 (Fla. 5th DCA 2005) and Kimbrough v. State, 886 So. 2d 965 (Fla. 2004). I'm not sure if the state could depose her using some other power.

[cboldt]

If that's her reason, I believe it can be solved by formally striking Shellie from the defense witness list, as happened in  Huet v. Tromp, 912 So. 2d 336 (Fla. 5th DCA 2005) and Kimbrough v. State, 886 So. 2d 965 (Fla. 2004). I'm not sure if the state could depose her using some other power.

I wonder if making a statement in open court is formally striking (although, in this case, defense posture is that she wasn't there to strike in the first place).  Remarks and motions in open court are good enough for making other rulings, and it isn't as though a motion is required.  Everybody has notice.  I'd ask "who controls their own witness list"?

I think the state can depose her under its Chapter 27 powers, but I haven't really studied the limits of that power.  Maybe Bernardo is blowing smoke there, too.

[annoyedbeyond]

I admit--the way the state and Judge Nelson are going about things is more than a little bizarre imo--but in point of fact, did MOM actually strike her from the witness list or simply say he wasn't going to call her, and is there a difference (hair splitting is what attorneys do best after all)?

Either way--I still agree with Jeralyn's point which sums up my feelings better than I've been able to do.

But more to the point: what could she testify to? She wasn't there for the event, and anything that came later would be covered by spousal privilege wouldn't it?

[MikeB]

I asked this question on the main site, but I have a question for the lawyer types here regarding inadmissibility to texts due to what Judge Nelson calls "authentication". Does this mean that anyone can say whatever they want via social media because you can't authenticate they actually typed it? Has anyone been penalized (criminally or civilly) because of stuff said via text, twitter, facebook, etc? I get her premise - at first I thought it was a solid ruling. But at some point, common sense would need to prevail or there would be no slander or libel remedies on matters pertaining to social media. Heck, people could make death threats all day long according to Judge Nelson because you can't prove a person typed it. Does case law exist that show Judge Nelson is not being consistent?

Edited to add: Watching CNN this morning, text messages for the Jodie Arias case were admitted and seemed to sway some jurors in trying to determine her sentence.

[RickyJim]

There have been a number of convictions based on "incriminating emails".  Facebook postings have been admitted in divorce cases, I've read.  Somehow they must be authenticated.  The defense might argue that the defendant's account was hacked and somebody else really wrote them.  In this electronic communication era, there is certainly a growing case law on the subject.

[Evil Chinchilla]

I asked this question on the main site, but I have a question for the lawyer types here regarding inadmissibility to texts due to what Judge Nelson calls "authentication". Does this mean that anyone can say whatever they want via social media because you can't authenticate they actually typed it?

I share your bewilderment, especially since this is apparently material originally recovered by the state-- from a phone stipulated by the state to have been Trayvon's-- and belatedly shared with defense by the state, but in the form of BIN files defense had to first translate.

It seems a fairly easy task to prove the texts, images and videos in defense evidence were recovered from the phone and that they weren't altered in any way by defense (I've seen people out there claiming the images released last Thursday were Photoshopped). It also seems easy to prove if a text was actually sent from the phone.

So then the question seems to be determining whether the texts were actually made by Trayvon, as opposed to someone else who had control of the phone at those times.

This has always been my main beef about W8 being considered as a permissible witness. We can determine that at repeated points on 02/26/12 prior to the incident, a certain phone was connected with the phone found at the scene. But that's it.

We have no way of authenticating what words were exchanged-- if any at all-- during the times those numbers connected, and we have no way of authenticating if W8 was the person on the other phone for all-- or any-- of those connected periods.

The alleged W8 calls are in marked contrast to George's NEN call and the 911 calls, which are recorded and easily able to be authenticated. They're also in marked contrast to recorded material (texts, images, videos) recovered from the cellphone stipulated to be Trayvon's, in that a jury at least can examine what exact words were said (and images captured).

Beyond verifying that defense evidence matches what state got off the phone and wasn't altered, I don't see why W8's testimony is admissible and material on Trayvon's phone is not. At the very least, they are images and videos he found important enough to carry around with him on the phone, and it seems like it could be used to rebut any state allegations of character.

[cboldt]

Beyond verifying that defense evidence matches what state got off the phone and wasn't altered, I don't see why W8's testimony is admissible and material on Trayvon's phone is not. At the very least, they are images and videos he found important enough to carry around with him on the phone, and it seems like it could be used to rebut any state allegations of character.

W8's testimony is what authenticates the association between phone bill (hers and his showing a voice connection) and who was conversing.  She may be lying, but that's for the jury to sort out.  The fact that she appears on the witness stand is the authentication.

She can also authenticate texts on Martin's phone, that were to or from her.

The authentication issue comes with the other texts.

[leftwig]

Weren't texts from the deceased used in the Jodi Arias trial?  Were they authenticated in some manner?

I can totally understand that we can't assume every text originated from a particular cell phone came from that person, but in this case, we are talking about texts from 2/26 when TM was miles from home, his closest relative was in Orlando and not with him, his phone was password protected and he was using it almost all day long.  Is the burden really that someone has to witness the person sending the text  for it to be admissible?

[TalkLeft]

I asked this question on the main site, but I have a question for the lawyer types here regarding inadmissibility to texts due to what Judge Nelson calls "authentication". Does this mean that anyone can say whatever they want via social media because you can't authenticate they actually typed it? Has anyone been penalized (criminally or civilly) because of stuff said via text, twitter, facebook, etc? I get her premise - at first I thought it was a solid ruling. But at some point, common sense would need to prevail or there would be no slander or libel remedies on matters pertaining to social media. Heck, people could make death threats all day long according to Judge Nelson because you can't prove a person typed it. Does case law exist that show Judge Nelson is not being consistent? Edited to add: Watching CNN this morning, text messages for the Jodie Arias case were admitted and seemed to sway some jurors in trying to determine her sentence.

I answered you with a lot of source links on the main site.

[cboldt]

Weren't texts from the deceased used in the Jodi Arias trial?  Were they authenticated in some manner?

I can totally understand that we can't assume every text originated from a particular cell phone came from that person, but in this case, we are talking about texts from 2/26 when TM was miles from home, his closest relative was in Orlando and not with him, his phone was password protected and he was using it almost all day long.  Is the burden really that someone has to witness the person sending the text  for it to be admissible?

I posted some remarks on this subject on the main board.  I don't think authentication of text messages to or from W-8 is an issue at all, and I don't think authentication of text messages from Martin to anybody on 26 Feb 2102 poses an issue.  As to the later class of messages, Nelson might differ.  I also cited a case, State v. Raymond Lumarque, 3D09-2781 (Fla. 3d DCA, 2010)

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).

[Evil Chinchilla]

W8's testimony is what authenticates the association between phone bill (hers and his showing a voice connection) and who was conversing.  She may be lying, but that's for the jury to sort out.  The fact that she appears on the witness stand is the authentication.

By that standard, you'd think the jury could also be left to sort out whether the texts were made by Trayvon or someone else. After all, she's been stipulated to have lied during a sworn deposition. But IANAL, and I'm thinking like a layperson using logic rather than established procedure.

And why does it make any sense that someone else other than Trayvon would be texting during the period of time that Tracy established Trayvon traveled to Sanford from Miami Gardens? Those are the 02/21/12 messages where the texter says that he's on a bus, later arriving in Ft. Pierce (mid-way between the two points of Trayvon's journey), getting back on the bus, then arriving in Orlando?

And there are other texts that are so closely tied to what has been stipulated to about Trayvon that it makes no sense that someone else would be using the phone to make them.

Plus, wasn't there some sort of allegation from Team Crump that Trayvon's cellphone was "treasured" and he was never seen without it?