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Reversible Error in Zimmerman Before We Even Get a Verdict?

The state claims that Zimmerman was an aggressive stalker who murdered Martin after instigating a deadly physical confrontation. The prosecution argues, moreover, that (a) the shooting was caused by Zimmerman’s purported hatred for Martin (whom he did not know), coupled with his supposed depraved indifference for human life; and (b) Zimmerman was not lawfully acting in self-defense. Zimmerman counters that he was attacked and brutally beaten by Martin, a patently capable brawler, before, in justifiable fear of his life, firing his (lawfully carried) gun. The cellphone evidence reportedly contains conversations in which Martin discussed his street-fighting exploits with various family members and associates – including a request by Martin’s half-brother that Trayvon teach him how to fight.

To grasp how palpably relevant this evidence is to issues the state has put in play, ask yourself what the prosecutors would be saying if this had been Zimmerman’s cellphone containing evidence of his pugilistic skills. Think for a moment of the absurdly extravagant inferences prosecutors are asking the jury to draw about Zimmerman’s state of mind from off the cuff remarks (e.g., “these f***ing a******s always get away” and “f***ing punks”) made to the police dispatcher while he was watching Martin (because, you know, depraved-mind murderers always call the police to give them a real-time, blow-by-blow account). Is there any way such prosecutors would abide a defense claim of irrelevance regarding direct admissions by Zimmerman of his fondness for and adeptness at street-fighting? This is not a situation where the defense is claiming that evidence of Martin’s involvement in criminal activity is admissible to show he was a bad guy and therefore probably at fault. We are talking about evidence of traits of Martin’s that are directly relevant to issues the prosecution itself has raised.

Perhaps that is why the prosecution is reduced to the silly contention that when the word “fight” is used in Martin’s conversations, it could have been “code” for something else. Again, given the case they have presented, these prosecutors are in no position to claim that evidence should be excluded because it might cause the jurors’ imaginations to run wild. As defense lawyers pointed out, they were not looking to interpret Martin’s conversations -- just place his statements before the jurors and let them apply their common sense. The prosecutors could then roll out their fanciful “code” rebuttal and see how far that gets them.

In any event, even if relevance is clear, that hardly excuses Judge Nelson’s failure to address it. As a former prosecutor, I winced in embarrassment watching the prosecutor’s argument, but that doesn’t change the fact that relevance is a contested issue. Judges have an obligation to rule on those when they are excluding exculpatory evidence in a murder case. Nelson punted.

The judge appears instead to have relied solely on the evidence’s purported lack of authenticity -- specifically, how can we be sure that the texts and other communications on Trayvon Martin’s phone (which include photographs of Trayvon Martin) are really Trayvon Martin’s? After all, Judge Nelson sputtered, there are plenty of tech-savvy seven-year-olds who know how to access computer programs and send texts, tweets, emails, etc. How do we know that someone else didn’t use Martin’s phone to send the messages about fighting (or, I suppose, whatever “fight” was “code” for)?

The short answer to this is that legal authenticity does not require that kind of certainty. The rules of evidence are designed to promote the admissibility of relevant evidence – they err on the side of letting the jury consider evidence unless it is patently ripe with unfair prejudice (i.e., would lead the jury to decide a case based on inflamed passions or utter confusion). Authenticity, in particular, is generally -- as we say in the biz -- “a matter of weight not admissibility.” That is, if there is a reasonable chance that the thing at issue is what its proponent purports it to be, courts are supposed to favor admitting it into evidence while giving the opposing party lots of leeway to attack its significance on cross-examination and in summation arguments.

Here, we are talking about messages that were not only on Martin’s own phone but were concealed under a “stealth” application. In effect, they were double password protected: the password needed to use the phone plus the password needed to access the stealth app. Furthermore, there are apparently hundreds of messages, such that, if necessary, it should be straightforward to establish signature communications patterns that can identify the user.

Besides the nonsense suggesting that maybe a child purloined Martin’s phone, pierced the double-password protection, and sent the pertinent messages, Judge Nelson also inappositely compared the case to one where a proponent is trying to get emails admitted. Some courts have reasoned that you cannot tell, just from the email itself, whether it was sent by the person assigned the sender email address. In my mind, that is a matter of weight, not admissibility in any event; here, though, we do not just have the messages, we have the phone from which they were sent -- a phone configured in a way that indicates the user made it difficult for anyone other than himself to send and access messages.