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Reversible Error in Zimmerman Before We Even Get a Verdict?

Judge Nelson indicated that she had reviewed an authentication precedent the defense had pressed on her, the 2010 Florida case of State v. Lumarque. Typical of Nelson, she said it did not change her mind but provided no further insight, much less a rationale for distinguishing it. Like my ever-astute colleague William Jacobson -- the Cornell law prof behind the invaluable Legal Insurrection site -- I think the judge has committed reversible error by excluding this evidence. But while Lumarque should certainly have helped Zimmerman, I am not quite as persuaded by it as Bill seems to be.

Lumarque involved salacious images and text messages on the cellphone of a woman who was beaten by her ex-husband. The trial judge excluded some of them because the woman could not authenticate them as her own. The appellate court reversed the conviction, holding that the exclusion was erroneous because the evidence came from the woman’s own phone even if she could not identify it. But in Lumarque, the issue was the defendant ex-husband’s motive for the assault; obviously, he was enraged at finding sexually explicit messages between the woman and her boyfriend, regardless of whether they’d been sent by the woman or someone else. In the Zimmerman case, by contrast, the information has nothing to do with explaining Zimmerman’s behavior; the messages about fighting are relevant only if they come from Martin himself. Judge Nelson could thus have reasoned that the authentication standard should be higher. Of course, she didn’t tell us, so we don’t know.

In any event, Lumarque does remind trial judges that authentication is a low hurdle -- admit the evidence but allow vigorous cross-examination. In this case, there was even greater reason than usual to follow that wisdom. It goes without saying that the best authentication witness, Martin, is not available. Further, there are allegations that prosecutors delayed for months -- until June 4, just a few weeks before trial, the busiest time for litigators -- before disclosing the cellphone evidence. The defense’s authentication showing was more than adequate, and these attendant circumstances should have lowered their burden. Nelson inexplicably raised it.

This prosecution is a travesty.