You’re still not getting that the pre-trial hearing is a red herring. If it makes sense for Zimmerman argue SYG when he has to provide a preponderance of evidence in support of his innocence at pre-trial, then it also makes sense for him to argue SYG at trial, when he doesn’t have to provide this preponderance. Never, at any point, does it cost him to argue SYG.
Making his ability to retreat (or not) an issue is exactly what the defense should not be doing if they want to win. But shoot, who am I to burst your bubble. If you want to keep on thinking Zimmerman is in good hands with this approach, I’m not going to dissuade you.
Depends what the appeal is based on. The jury cannot disregard the law. This is what Bricker was trying to explain to you. They can’t simply say they don’t believe Zimmerman (without evidence to the contrary) and convict him of a crime.
Not as a lawyer, no. But I am quite familiar with SMS messaging and the technical issues surrounding SMS (and SMTP, while we’re at it) messages.
OK, so let’s talk about SMS messages and the foundational requirements for authenticating them.
In this case, I postulated that the messages in question are known to the prosecution because they were supplied by the carrier – I am talking, in other words, about the undisclosed evidence mentioned by the prosecution that supposedly includes text messages.
What would be required to admit those as evidence?
They are hearsay. For the purposes of this discussion, we assume they meet the standards for an exception to the hearsay rule.
They must be authenticated. It’s true that the mere existence of the message is not enough to do this – or even the proof that they came from Zimmerman’s phone. After all, forget electronic spoofing – someone could have picked up his phone and sent a message. To authenticate a text message is not impossible, though – it simply requires some additional evidence. One such type of additional evidence is where the text message “…contain factual information or references unique to the party involved.” As presumably they would here.
I’m not speaking hypothetically on the subject of admission of text messages. In Rodriguez v. Nevada, the Supreme Court of Nevada upheld the conviction of Kevin Rodriguez, where the evidence against him at trial included text messages sent from him using a stolen cell phone. In In the Interest of FP, 2005 PA Super 220 (2005), the Superior Court of Pennsylvania laid out rules for accepting electronic messages into evidence. In Massimo v. State of Texas, 144 S.W.3d 210 (Tex.App. 2004), e-mails were admitted into evidence where the victim recognized the appellant’s e-mail address; the e-mails discussed things only the victim, the appellant, and a few other people knew about and they were written in the way in which the appellant would communicate. In US v. Finley, 477 F.3d 250 (2007) the conviction of a methamphetamine purchaser was upheld on evidence of text messages read and copied from his phone, where the messages indicated his awareness of the meth. In State v. Taylor, 632 SE 2d 218 (2006), text messages were admitted into evidence simply on testimony from the cell provider that those messages were sent to and received by a particular phone number.
So while I don’t deny that SMS spoofing exists, the rule of law is that the fact that SMS spoofing exists does not prevent admission of text messages.
Oh, and Florida law? Florida admitted inot evidence text messages found on a cell phone that was seized in a valid search. Period.
Quoting State v. Lumarque, 44 So. 3d 171, (Fl DCA 2010).
So to summarize. You did a Lexis search and discovered I was right and Text messages need a lot of corroborating before they can be used at trial You made a big point about using text messages from the defendant’s phone like I hadn’t already pointed it in my post.
Man you get irate when people prove you are wrong.
BTW pointing out that you have used text messaging a lot makes you equivalent to the average 10 year old. Pointing out that you have used a lot of email is double lame.
And as I pointed in 5137 there are fairly strict guidelines for admitting SMS messages as evidence, but you have a pretty good shot if you pull them from the phone.
You did a Lexis search and discovered I was right and you are covering up now.
No. And, no. First of all, to dispose of your last jab: I did not say I have sent a lot of e-mail. I said I was very familiar with STMP, by which I mean I understand the SMTP handshake, the connection over port 25, HELO to kick things off, MIME encoding, what an MX record is, what an SMTP relay is, and pretty much any other damn thing associated with sending SMTP messages between hosts.
And when I said I was very familiar with SMS messaging, I meant I know how MAP is implemented under SS7 and the difference between MO- and MT-ForwardSM. I have written and debugged SMS transmission scripts using a satellite transceiver that used a superset of the Hayes command set.
As to your second point: no, again.
To review the discussion that led us here:
(emphasis added to point out the obvious qualification I made right away)
You now agree that it’s possible to spoof SMS (you never disagreed, after all) AND you now agree that it’s admissible with proper foundation. Doesn’t have to be technical – remember the case where the foundation was the subject matter of the messages being something only the accused would know.
Which is what I said.
You suggested that text messages could not be used – at least that’s what I took “lousy evidence” to mean.
In the first place your references to SMTP still displays your technical ignorance. I actually ran my own mail server for awhile about 20 years ago and SMTP has almost nothing to SMS.
You example messages contain no information that would connect them to Zimmerman.
You made no reference at all to the technical steps involved in connecting an SMS message back to the defendant . Without expert testimony and an audit trail SMS records are almost useless. According to the discovery documents they only have 2 weeks of Zimmerman’s Text messages. (3-7 to 3/22)
I run my own mail server today. I have my own domain, with its own MX records, and my own Linux box running smtpd with my own customized smtpd.conf. I mentioned this not to suggest that this gives me particular expertise in SMS but to buttress my general technical credentials and to distinguish me from merely sending e-mail.
Yes, and I gave you a cite of a court case in which there was no expert testimony or an audit trail and the text messages were still admitted as evidence. How could this happen, according to you?
If in fact the prosecution has incriminating text messages from GZ, then if necessary they’ll get the bullet proof audit trail and expert witnesses and whatever else is neceessary. This is a very high profile case and they have an almost unlimited budget.
[FTR, unlike Bricker, my knowledge of email is pretty much limited to sending them.]
If a civilian’s cell phone pic of Zimmerman has a chance of being admissible in court, why wouldn’t a text message? Both can be faked.
By the way, was that pic of Zimmerman included in discovery? I don’t remember seeing it in any of the document dumps. That pic still strikes me as off in some way, and not just because it shows Zimmerman talking on the phone when according to Zimmerman and one of the witnesses, he never was on the phone.
Some of your other cites are to email cases and not to SMS. Another was about evidence the police got from the defendants cell phone. Based on the discovery evidence published, that doesn’t seem to apply here.
Do you honestly think that someone who couldn’t get away is ineligible for the latitude that SYG grants defendants who claim self defense? Because that is exactly what you’re saying when say SYG doesn’t apply.
“SYG” as in “stand your ground” concept does not apply in that case. “SYG” as in “stand your ground law” does apply. The two are different and separate.
[QUOTE=Terr]
“SYG” as in “stand your ground” concept does not apply in that case. "
[/QUOTE]
Yes it does. Perhaps you need a refresher course in English? Because you’re still showing that you don’t know what the words “stand your ground” mean.
If you can’t retreat, guess what? You’re still standing your ground. Perhaps using some common sense to interpret the phrase might help you see the light.
“Stand your ground” concept means you CAN leave but you are not doing it. That doesn’t apply in this case. “Stand your ground” law does and will apply. Hope this clears up your confusion.
In none of these definitions is the inability to retreat relevant. Any one who can’t retreat but successfully fights back against their alleged attacker is standing their ground.
As you, wise Terr, opined earlier, “regular self-defense” is a subset of SYG. So this clearly implies there is no need draw any distinctions between the ability and inability to retreat when deciding whether someone is SYGing. The only relevant consideration is provocation.
I don’t know about you, but being on your back with someone sitting on your chest makes it a little difficult to stand at all, let alone stand your ground.
That’s kind of a bizarre way to put it, but yes - SYG does not grant any extra latitude to people acting in self defense who cannot retreat. They have the same latitude as in states where you are acting in self-defense, and cannot retreat.
That’s what it means to say “SYG doesn’t apply”. That is to say, it isn’t necessary for the defense to argue that Zimmerman had the opportunity to retreat and didn’t take it. Because he didn’t have the opportunity to retreat. It doesn’t make any difference if he had the right to stand his ground - he couldn’t stand his ground.
You seem to want the defense to argue that Zimmerman had the right to shoot Martin even though he could have retreated. But he could not have retreated. So that line of defense doesn’t make any sense, and has essentially no relation to the case.
If the facts of the case were different, and it was clear that Zimmerman could have run away but didn’t, then that line of argument would probably be something the defense would propose. But the facts of the case aren’t different.
Nobody cares what could have happened if Zimmerman could have retreated. He couldn’t. So SYG doesn’t apply. It doesn’t give any extra latitude to Zimmerman, to put it in your terms.