At today's hearing on excluding words, the state's attorney said their theory of the case is that Zimmerman confronted Martin. The judge repeated that and said "that's their whole case" and said they could say it.
Note, though, that he never said Zimmerman physically confronted Martin. The state was careful in its affidavit to say "Zimmerman confronted Martin and a struggle ensued."
At the April 20 bond hearing, Gilbreath said he had no evidence
Zimmerman physically confronted Martin as opposed to initiating the verbal encounter.
Witness 8 said it was Martin who initiated the verbal encounter. State's Attorney Guy today said they have evidence Zimmerman initiated the encounter, but he didn't specify which one: the verbal or physical. BDLR has hinted before their evidence is the statement of one of the sisters (who also said she couldn't see because she didn't have her contacts in). The sister went from seeing two figures fighting, to seeing nothing only vaguely hearing something (she got a glance of running, but more heard it than saw it) to seeing arms flailing. It was dark and raining.
Yes, if there is testimony at trial that Zimmerman provoked Martin, the judge could add that to the instruction. But she said she was reading the entire instruction which had already been personalized and Bernie didn't object. So as of now, I don't see any reason to think the court plans on including the aggressor portion.
Both sides submit proposed jury instructions in advance of trial. She may have had the parties submit them to chambers rather than file them. She may have had a conference with attorneys on them. I don't know how Florida judges handle their jury instruction conferences, but I would think that the only thing that would have to be on the record in open court is her ruling on objections to the court's final proposed instructions at the end of the trial. Since there is no record on the docket of either party submitting instructions, it may be they were not filed with the clerk but submitted directly to the court. The proposed instructions would include references to anticipated trial evidence that may or may not accurately reflect the actual evidence at trial, so she may not have wanted them public.
There are a lot of things not on the docket that we know the court reviewed.