May 28 Court Hearing

[cboldt]

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?

You make a good point about texts while he was on the bus.  He had the phone in Sanford, and it wasn't mailed separately.  Most likely Martin and the phone were together when he was transported from the Miami area to Sanford.

I don't think Crump's remarks are worth spit in the context of authentication.  How would he know?

The range of what "sufficient" is, is no doubt huge.  Most judges will err in favor of the prosecution, admitting state's evidence of defendant's communication over an authentication objection (provided there is something that serves to authenticate the message); and I expect they are all over the map on admitting exculpatory evidence over an authentication objection.  The judge's ruling has to be clearly erroneous in order to be struck down, so most of the ruling will stand.  Not all of them, the trial judge in the case I mentioned was reversed, but that was state's evidence, and was not exculpatory.

[cboldt]

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.

I want to add a thought, that directly arguing possession of the phone at the relevant time is not the only way to obtain authentication of a sent message.  If a message follows a certain pattern attributable to the person being claimed as the author, or if it is a reply to a message from somebody else, those facts may be found "sufficient" to produce a finding of authenticity.  Ask the people around him (in this case, Chad, Brandi, Tracy) if they ever used the phone, and also investigate the passcode protection - did they know it?  If the phone is reasonably secure, that's pretty good evidence, alone, that only people who knew the passcode might have sent from that device.

[MikeB]

I want to add a thought, that directly arguing possession of the phone at the relevant time is not the only way to obtain authentication of a sent message.  If a message follows a certain pattern attributable to the person being claimed as the author, or if it is a reply to a message from somebody else, those facts may be found "sufficient" to produce a finding of authenticity.  Ask the people around him (in this case, Chad, Brandi, Tracy) if they ever used the phone, and also investigate the passcode protection - did they know it?  If the phone is reasonably secure, that's pretty good evidence, alone, that only people who knew the passcode might have sent from that device.

IANAL, but I did a little digging (with a jump start from Jeralyn) and authentication is not hard. Authentication seems to be done by finding information where you would think it would be (texts came from the phone in TM's possession) and writing characteristics. In other words, reasonable common sense. Otherwise, people would deny doing the actual typing and get away with murder (possibly, literally). This has been challenged in a number of cases and claiming you didn't write the messages doesn't work. If I have time to read a transcript of the hearing, I would like to see how Judge Nelson ruled on the authentication issues. I thought she said they COULDN'T be authenticated - not they weren't authenticated. If she said they could not be authenticated, I think she is factually wrong.

[MJW]

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.

The Detailed Case View says:

05/28/2013    MNFD    --ATTORNEY O'MARA RESPONDED AND INFORMED THE COURT THAT THE DEFENSE DOES NOT
05/28/2013    MNFD    --PLAN ON CALLING SHELLIE ZIMMERMAN AND HAS WITHDRAWN HER AS A WITNESS.

The court minutes say something similar. I don't see how she can be deposed unless the state uses a power different from the reciprocal discovery rule.

[cboldt]

If I have time to read a transcript of the hearing, I would like to see how Judge Nelson ruled on the authentication issues. I thought she said they COULDN'T be authenticated - not they weren't authenticated. If she said they could not be authenticated, I think she is factually wrong.

She just mentioned that the texts are burdened with authentication and hearsay issues.  I don't think O'Mara was shocked at that.  She is telegraphing her approach to trail, and her remarks are a hint to Bernardo that he has many avenues of objection to work with - Nelson is receptive to excluding evidence.

I'd have to think about the state's evidence to get a sense for the effect, but all these swords are double edged.

[cboldt]

I don't see how she can be deposed unless the state uses a power different from the reciprocal discovery rule.

She can do so voluntarily.  If I was her, I would refuse.  Then when hit with contempt, I would argue that the state has not invoked a power that allows it to compel testimony.  I am not a defense witness, and the state's subpoenas uses, as it's source of power, that I am a defense witness.  The state's order is void.

[nomatter_nevermind]

She wasn't there for the event, and anything that came later would be covered by spousal privilege wouldn't it?

Only 'communications which were intended to be made in confidence between the spouses' (Fla. Stat. § 90.504).

[annoyedbeyond]

Only 'communications which were intended to be made in confidence between the spouses' (Fla. Stat. § 90.504).

Which would be pretty much anything they said without a third party present.

[nomatter_nevermind]

Of the sources linked by Jeralyn, I think p. 4 of Admissibility of Writings (Emails and Texts) sheds some light on authentication issues. On the applicable threshold:

see also Huddleston v. United States, 485 U.S. 681, 690 (1988) (interpreting federal equivalent of Rule 104(b) and finding that the trial court must decide whether "the jury could reasonably find the conditional fact . . . by a preponderance of the evidence").

Of course Florida may be different, but at least that's a ballpark for prevailing standards.

Note that it's a weaker standard than the court itself finding a preponderance of evidence.

[nomatter_nevermind]

Do the Florida Rules of Criminal Procedure contain any provisions for withdrawing witnesses that have been listed?

[nomatter_nevermind]

I wonder if making a statement in open court is formally striking

Shellie's attorney, Kelly Sims, 3/28/13 hearing, 38:21

I think that what the defense for Mr. Zimmerman has said is they have withdrawn her as a witness. I mean, they are. If they hadn't before they are right now, today.

[nomatter_nevermind]

I would like to see how Judge Nelson ruled on the authentication issues.

She didn't. There weren't any.

Neither party raised any authentication issue for Nelson to rule on. As cboldt said, it was Nelson who brought up authentication.

It came up during the discussion of fighting. O'Mara mentioned that the evidence he would bring on reputation included text messages and Facebook posts. Nelson asked how he would authenticate them. O'Mara said he had people who had participated in the conversations under subpoena. (3/28/13 hearing, 55:21)

Nelson was engaging in a digression, asking O'Mara for a preview of what he intended to do at trial. There was no authentication issue before the court, and so no ruling on one.

In some of her rulings, Nelson commented that the evidence would only come in if it passed other hurdles, like authentication and hearsay. Those were just comments, not part of the rulings. They were reminders that those issues were not before the court, and hadn't yet been ruled on.

[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.

Just fixing link to Kimbrough v. State, 886 So. 2d 965 (Fla. 2004).  Your original links both citations to the Huet case.

[MJW]

Just fixing link to Kimbrough v. State, 886 So. 2d 965 (Fla. 2004).  Your original links both citations to the Huet case.

Thank you. I should have double checked. (Or even single checked.)

[nomatter_nevermind]

MEDIA COMPANIES' BRIEF REGARDING ELECTRONIC COVERAGE OF JURORS AND IMPANELING AN ANONYMOUS JURY

At least two forthcoming media briefs were mentioned in the 3/28/13 hearing (2:39:18). I don't know which one this is. Maybe they were combined.