Authenticating Trayvon Martin’s Digital Records

Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. – Florida Statute 90.901

A major issue in the George Zimmerman case is whether Trayvon Martin’s cellular phone and social media records (collectively digital records) will be admissible in court.

And as a threshold matter, Judge Nelson has indicated skepticism that these records can even be authenticated – i.e. that it can be proven they are what they purport to be.

Likely, this skepticism is based on the belief that Trayvon Martin would be the only person who could authenticate them. However, this belief is mistaken.

Authenticating Digital Evidence

In Florida, “[e]vidence may be authenticated by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances. In addition, the evidence may be authenticated either by using extrinsic evidence, or by showing that it meets the requirements for self-authentication (i.e. certified records).” Symonette v. State, 100 So. 3d 180 (Fla. 4th DCA 2012).

Text Messages

In Symonette, the detective obtained a search warrant and took pictures of text messages on the defendant’s phone and the person who had sent the messages to the defendant testified to having done so.

As a result, even though the defendant (the owner of the phone) did not personally authenticate them, the circumstances of how the pictures were obtained (through a law enforcement officer’s search of the phone) combined with the sender of the messages testimony was sufficient extrinsic evidence to support their admissibility.

In George Zimmerman’s case, given that Trayvon Martin’s phone was lawfully obtained by law enforcement and properly searched, any “authentication” objection should fail so long as the defense is able to secure testimony from the second party to the text messages on Trayvon Martin’s phone (i.e. W8).

But what if W8 feigns ignorance or lack of memory of the texts?

Second Party’s Lack of Memory

In State v. Lumarque, 44 So. 3d 171 (Fla. 3d DCA 2010), the defendant was charged with a series of domestic violence related charges against his ex-wife. The State sought to introduce a series of text messages and images found on the defendant’s phone that were between the ex-wife and her then boyfriend (don’t ask, I don’t know why she used his phone).

The ex-wife testified that she only recognized two images and one text. As a result, the trial court only found those three items authenticated and admissible and excluded the remainder.

The appellate court reversed and states “the images and text messages were found on the defendant’s cellular telephone, seized pursuant to a search of the defendant’s home through a warrant shortly after the alleged incident. This fact, testified by the State’s forensics expert, is sufficient to authenticate these exhibits.” Id. citing U.S. v. Caldwell, 776 F.2d 989, 1001-02 (11th Cir.1985) (holding that authentication of evidence merely requires a finding that the evidence is what it purports to be).

As a result, it appears that so long as a proper predicate is laid that the phone found on Trayvon Martin was secured by law enforcement and first searched by law enforcement, the contents of it would be authenticated without the need for calling the second party to any of Trayvon Martin’s conversations.

Multimedia Records

Multimedia records (i.e. videos and pictures) are actually some of the easiest records to authenticate.

When it comes to visual evidence, such as pictures or videos of a person, the defense (or state) would only need one person to testify that the person in the video or picture is the person in question. See Bryant v. State, 810 So. 2d 532 (Fla. 1st DCA 2002) (Any witness can testify that a photograph is a fair and accurate representation of the individual, and the photographer’s testimony is not necessary to authenticate the photograph.)

Notably, under Florida’s evidentiary code, the definition of photographs includes “still photographs, X-ray films, videotapes, and motion pictures.” Florida Statute 90.951

Social Media Records

Trayvon Martin’s social media records would seem to pose a slightly different problem, because as far as I can tell, they were obtained directly from Twitter (or other social media accounts).

Assuming the records did not exist on his phone, authentication of the records would be a multi-step process.

  1. First, the defense would have to identify Trayvon Martin’s actual social media accounts (likely through his known email address, cell phone number, or ip address from last known access point.)
  2. Second, the defense would have to subpoena Trayvon Martin’s social media records.
  3. Third, once received, the defense would have to either list a Business Records custodian or file a Notice of Intent to Rely on a Business Records Certification under Florida Statute 92.605.

Notably, so long as the above procedure is properly followed, Florida Statute 92.605 specifically holds that records produced under this rule are self authenticating and non-hearsay.

Thus, the primary argument I see the defense running into is proving that the social media accounts in question were actually Trayvon Martin’s. This could be accomplished  through the process outlined in  Symonette v. State, 100 So. 3d 180 (Fla. 4th DCA 2012), where W8 could testify that the social media account in question was the one Trayvon Martin used.

Or, as suggested in State v. Lumarque, 44 So. 3d 171 (Fla. 3d DCA 2010), it could be done through some type of extrinsic proof. Such extrinsic proof would likely be accounts connected to his cellular phone or any other electronic devices of his that were examined by law enforcement. See also Harden v. State, 87 So. 3d 1243 (Fla. 4th DCA 2012) (Victim’s MySpace records admissible through business records certification.)

However, I would note that to date the defense has not filed a Notice of Intent to Rely on Business Records Certification, nor as far as I can tell, listed a custodian of records from a social media company.

Thus, I don’t foresee any social media evidence being introduced into his trial.

Authenticatable, but are they Admissible

Ultimately, while Judge Nelson expressed skepticism about the admissibility of Trayvon Martin’s digital records because of authenticity concerns, I suspect she was really expressing questions about how the defense will get around hearsay objections.

Hearsay testimony occurs when someone testifies to a statement that was made outside-of-court and the statement is offered to prove the truth of what was said. Florida Statute 90.801(1)(c). Importantly, hearsay testimony is inadmissible. Florida Statute 90.802.

However, the Florida Supreme Court has recognized that a statement may “be offered to prove a variety of things besides its truth.” Foster v. State, 778 So. 2d 906, 914-15 (Fla. 2000). When a statement is not offered for the truth of its contents, but to prove a material issue in a case, it is not hearsay. Id.

In this case, the the digital evidence between W8 and Trayvon Martin may be admissible for a variety of reasons other than to prove the actual contents of the messages.

And it is for this last reason that I suspect the George Zimmerman defense team will try to get Trayvon Martin’s digital records in. While Trayvon Martin’s messages about fighting may be hearsay; the knowledge that they bestowed upon the recipient create a non-hearsay reason to admit them. i.e. to show that Trayvon Martin was a seasoned street fighter.

As an aside, if George Zimmerman’s defense team has the recipients of such messages available, I suspect that it is these witnesses whom the George Zimmerman defense team is concerned will be subject to retaliation or retribution.

Because most any person who knew Trayvon Martin would be from South Florida. Thus they would likely be ostracized within their community and subject to some form of retaliation for testifying “against” Trayvon Martin.

Author: Richard Hornsby

Orlando, Florida Criminal Defense Lawyer and DUI Attorney Richard Hornsby is Board Certified in Criminal Trial Law by the Florida Bar and represents clients throughout Central Florida in all criminal defense and DUI defense cases.

38 thoughts on “Authenticating Trayvon Martin’s Digital Records”

  1. “Because most any person who knew Trayvon Martin would be from South Florida. Thus they would likely be ostracized within their community and subject to some form of retaliation for testifying “against” Trayvon Martin.”

    My, my, my first blahs will riot if George is not convicted and now any witness who testifies to anything negative about Trayvon will become a pariah?

    It’s funny that after O’Mara sent a private investigator to South Florida to find dirt on Trayvon the best he can do is to dig up text messages between Trayvon and his buddies.

    OTOH the State had no trouble finding witnesses who wanted to talk about George’s evil past deeds.

    But I guess if your client is guilty you have to do whatever it takes to clear him even if its smearing the victim and his family.

    What an active racist imagination you have there, Richard.

    1. Is that the best you got, “active racist imagination.” You are welcome to set foot in a criminal courtroom and watch a trial that involves such circumstances; it’s the number one reason black on black crime goes unreported and under prosecuted.

      Get a life, and the next time you want to call me a racist, give any of the 50 African Americans I have represented in trial a call. They’ll be able to answer their phones to vouch for me since they were acquitted; and acquitted because I dealt with racial issues like a person that lives in the real world, not someone that lives in fantasy land, Mr. BlackMuscle.

      1. This isn’t a black on black crime.

        What you’re supposing is that there is some sort of racial solidarity among blacks in this case which would cause anyone who lives in Trayvon’s neighborhood to be ostracized if he/she testified for the defense.

        But you’re a defense lawyer so you look for the lowest common denominator to get murderers like George off the hook.

        I wonder why you haven’t mentioned the Frye hearings where at least one expert has testified that he can hear Trayvon exclaim–“I am begging you” before George shot him in cold blood?

        1. You do realize the whole Frye hearing is about the magical phrases the State “experts” claim can be heard.

          And yes, I have listened to all five experts and three of the five efforts literally, not figuratively, but literally laughed when asked if the words “I’m begging you” could be heard.

          And the greatest irony of ironies is if roles were reversed and the State was trying to get such evidence in against an African American, I have no doubt you would be claiming racism then too.

          But that’s the problem with so many Trayvon Martin supporters, this case isn’t about a fair trial.

          1. Richard,

            I think that you are mistakenly characterizing people who feel that Zimmerman is criminally (culpable on some level) as people who do not want a fair trial for Zimmerman. I think that Zimmerman does bear some criminal negligence but my theory presumes that Travon got cornered and decided to fight his way out.

            What I would ask to to consider is -no one – knows what really happened that fateful night. The only remaining witness is Zimmerman who I am certain that you would agree has a history of prevaricating.

            What that means is all that anyone can do ( the jury) is try and string together the pieces of evidence in such a matter to arrive at the best conclusion.

            You could very well be wrong Richard and I certainly concede that I could be wrong. You are one of the best lawyers in the state. While I have no legal training whatsoever, we have the same odds of knowing what really happened, given George is prone to lying.

            I too believe the expert witness who said that he could hear certain words is highly suspect.

            Why label me?

          2. What I find interesting is that O’Mara is no longer claiming that the screamer is George, but it’s just not Trayvon.

            I guess O’Mara couldn’t find a expert who would perjure himself for Georgie boy and ruin his reputation for a few dollars.

          3. Did Trayvon get a fair trial that night?

            No, George made many assumptions about Trayvon that night before he began following him.

            George lied about following Trayvon.

            George broke Neighborhood Watch rules and went over and above watching and reporting.

            George continued to follow Trayvon after the dispatcher instructed him to stop following Trayvon then he lied about it.

            But you think we don’t want George to have a fair trial when it’s obvious that George’s word isn’t worth darn.

    1. Finally, something worth debating, evidence of hacking would be grounds to sustain (uphold) and authentication objection. But as I indicated, it does not appear that the defense is trying to get in social media records, just his cell phone contents. And given that the cell phone was seized prior to the case being publicized, it is unlikely any tampering charges would be available.

      1. No, they already accomplished their mission which was getting the information into the public realm with the help of a compliant media.

  2. The fatal error in rodericks claim is even if Trayvon’s accounts were hacked the messages/images could only be altered or tampered with from the date of the hack forward. Trayvonite argument DECIMATED! LOL

  3. I heard about the supposed text messages between DeeDee and Trayvon the afternoon he was murder could be considered an argument and that’s why O’Mara wants them included in trial because supposedly that goes to Trayvon’s state of mind that evening and would PROVE that Trayvon was angry and aggressive.

    It’s too bad that George stated during his Hannity interview that Trayvon skipped away from him the night he murdered him.

    I guess there goes the idea that Trayvon was angry or agitated that night because I never knew an angry person to skip.

    As for the 911 call whether the jury hears Trayvon literally beg Witness #20 and Witness #11 to help him it’s obviously the voice of a teenager not a grown man.

    BTW when are you going to do a post about George belonging to Kokopelli’s gym?

    You know the gym that focuses on boxing and kickboxing (MMA).

    Know we know where Witness #6 originally got his MMA lie and why he recanted that portion of his original statement when he was pressed.

    I hope Witnesses 6, 11, and 20 have good lawyers.

    1. In my previous posts, I clearly indicated that evidence of training is admissible against either George Zimmerman or Trayvon Martin.

      As for your belief that it was Trayvon and not George was the one screaming, why would Trayvon be screaming for help if he was on top?

      Finally, why should witnesses 6, 11, and 20 need good attorneys? Attorneys can’t testify or assist while they give testimony in a criminal trial.

      1. I believe that Witness #6 is the person George is seen talking to while Witness #13 took a picture of the back of George’s head and George gave him the stupid scenerio about Trayvon on top of him striking MMA blows.

        For whatever reason the State has George’s phone records under seal, but we do know through the latest discovery that besides Shellie George called his brother either on 2/26 or 2/27 which is odd since they had been estranged for years before George murdered Trayvon.

        Witnesses #11 and #20 saw more than they admitted to that night. Their official police statements were completely different from the 911 call. Unfortunately Witness #11 was a member of the HOA so she was biased against Trayvon for financial reasons. Former Sanford police chief Bill Lee attended the March 1, 2012 HOA meeting which was before Witness #11 gave her first police statement. It was a pro-George meeting because one resident who had complained about George’s tactics prior to the night of Trayvon’s murder was thrown out.

        I wonder how far the State will push the three of them during direct exam.

        It’s going to be interesting.

      2. “As for your belief that it was Trayvon and not George was the one screaming, why would Trayvon be screaming for help if he was on top?”

        To summons help while he defended himself?

          1. Well Zimmerman could have attempted to detain Travon, but Travon, perceiving Zimmerman as a stranger ( who has been following him no less) begins fighting the stranger who is attempting to detain him. Under this scenario,Travon, not knowing how long he is able to keep Zimmerman disabled, yells for help. Can you see this possibility?

    2. > Know we know where Witness #6 originally got his MMA lie and why he recanted that porton of his original statement when he was pressed.

      It doesn’t seem accurate to say Witness #6 “recanted”. It seems more like he’s providing one more explanation for what he might have seen. The FLDE transcript is here:

      Some excerpts:

      “It looked like, ah, you know, [the guy in the black shirt or sweater] had been hitting him from – – on top. But, you know, I can’t truly see how close, you know, they were to each other, if he was hitting him, or if he was trying to hold him down in that position until the cops got there. So that’s what I mean in a MMA position, because it usually called like a mounted position, er, or something like that , but I’m not sure if that’s what it was. But he was on top at that point.”

      “but like, in my first statement that I made , I did say that he was hitting him from on top, um, because that’s what it looked like. I mean he could have still been hitting him, or he could have been trying to hold him down, you know. It was, you know, I really, truly can’t tell at that point. Um, but my first reaction, you know, from what – – just seeing it real quick, bam bam bam, that’s what it looked like at that point.”

  4. Richard,

    Out of curiosity. Do you have any factual support for your claim that Travon was a “seasoned street fighter”? If so could you please share?

      1. Roderick and company are regulars on the tinfoil hat wearing prince himself….Fred leathernuts blog. As we all know Fred isn’t big on facts, accurate legal insight, and correcting misinformation.

        1. I have agreed with Roderick on some issues, but I detest the Leatherman site for the reasons which you stated. Your generalizations are off the mark.

  5. Roderick sure likes to make a lot of nonsense up that is not supported in any way by the evidence. If he or any of his fellow Traynuts actaully bothered to review the states 17 discovery, Zimmerman’s gym contract is in there and it specifically states he joined for weight loss. So much for the trained fighter Traynut delusion. Try actually reviewing the evidence instead of making up ridiculous stories for a change roderick.

  6. the argument roderick will eventually try to make regarding the gym is that Zimmerman failed to meet force with force…thus murder 2. Most of the Traynuts fail to take into account such concepts as disparity of force and disproportionate advantage which would negate such an argument.

  7. On the suggestion that trayvon was “cornered”….upon reviewing the geography, there really is nowhere for trayvon to be “cornered” at.

  8. However, all the above said, the only social media and text messages relevant to this case belong to the defendant George Zimmerman, charged with murder in the second degree. And Mr. Hornsby knows this quite well, but advertises for legal defense customers rather than telling the truth about this case.

    1. And you would be wrong as always kate. Stop relying on your tarot cards and crystal ball for legal advice.

      Williams v. State, 982 So. 2d 1190; 2008 Fla

      An exception to the rule that character evidence is inadmissible “permits an accused to use character evidence to show that the victim of a crime was the aggressor and that the accused acted in self-defense.” Hedges v. State, 667 So. 2d 420, 422 (Fla. 1st DCA 1996). To utilize this exception, “the defendant’s prior knowledge of the victim’s reputation is not necessary.” Smith v. State, 606 So. 2d 641, 643 (Fla. 1st DCA 1992) citing Banks v. State, 351 So. 2d 1071, 1072 (Fla. 4th DCA 1977)).

      Hedges v. State. Hedges says:

      To prove the victim’s dangerous character, evidence either of the victim’s reputation for violence or of specific prior acts of violence is admissible, when the defendant knew of the victim’s violent acts or of his violent reputation at the time of the alleged offense. Such evidence tends to show that the defendant acted in self-defense. Smith v. State, 606 So.2d 641 (Fla. 1st DCA 1992). Evidence of prior specific acts of violence by the victim is admissible because it is relevant “to reveal the reasonableness of the defendant’s apprehension at the time of the incident.” Id. at 642-43, citing Quintana v. State, 452 So.2d 98, 100 (Fla. 1st DCA 1984).

      Smith v. State. Smith held:

      In Florida, evidence of the dangerous character of the victim is admissible to show, or as tending to show, that the defendant acted in self-defense. Garner v. State, 28 Fla. 113, 136, 9 So. 835, 841 (1891). Thus, when self-defense is raised, evidence of the victim’s reputation is admissible to disclose his or her propensity for violence and the likelihood that the victim was the aggressor, while evidence of prior specific acts of violence by the victim is admissible to reveal the reasonableness of the defendant’s apprehension at the time of the incident. Quintana v. State, 452 So.2d 98, 100 (Fla. 1st DCA 1984) (reversing first-degree murder conviction, because defendant erroneously precluded from offering reputation and specific-act evidence relative to self-defense claim). See also Hager v. State, 439 So.2d 996, 997 (Fla. 4th DCA 1983); Banks v. State, 351 So.2d 1071, 1072 (Fla. 4th DCA), cert. denied, 354 So.2d 986 (Fla. 1977); Williams v. State, 252 So.2d 243 (Fla. 4th DCA), cert. denied, 255 So.2d 682 (Fla. 1971); §§ 90.404 & .405, Fla. Stat. (Supp. 1990 & 1989); Charles W. Ehrhardt, Florida Evidence § 404.6 (1992 ed.). If reputation evidence is offered to show the victim’s conduct, the defendant’s prior knowledge of the victim’s reputation is not necessary. Banks, 351 So.2d at 1072. If, however, character evidence is offered to prove the reasonableness of the defendant’s apprehension, prior knowledge of the specific-act violence is necessary. Id.

  9. Thanks RH for your entainting comments. I have been following you for years. But, why is it so hard for people to seat back and let justice prevail. With this display of anger and stupidity, it seems that nobody will recieve a fair trial. The judge has already put the case on appeal with no delays. How can it move foreward when one of the reports want be ready for two weeks. This is wrong. And did anybody take into account that injuries would almost 100% produce yelling for help?

  10. Richard, I am so glad you are writing again. It is great to read your work. Thanks for taking a logical stand on this trial. I don’t think Zimmerman can get a fair trial.

  11. Richard,

    Re: your assertion that Travon was a “seasoned street fighter”.

    Do you concede the possibility that Zimmerman could have by chance stalked and cornered a seasoned street fighter? In contrast he could have encountered a person with no ability to defend himself.

    I am curious at how you arrive at the “seasoned street fighter” characterization. There were always fights at my high school. Most of it owed to immaturity and sometime adolescents vying for female attention. But I would hardly peg them as potential murderers. The necessary maturation took place in practically all of my former classmates with very few having a violent adult criminal history.

    Your use of “street fighter” is inherently flawed because it falsely implies that ALL adolescents who have school ground fights are street fighters.

    Do you have evidence of Travon seriously injuring anyone? ( outside of Zimmerman’s claims).

    I think of a street fighter as men or women whose -principle- activity is fighting. You have elevated an age old adolescent behavior to a far more implication to suit your purposes.

    1. Street Fighter is probably not the most artful term, but it most succinctly conveyed what I was trying to explain, which is that Trayvon Martin was unlikely to be some inexperienced, angelic like, choir boy who was incapable of lifting a finger against somebody.

      As far as “evidence” of Trayvon Martin hurting someone, or at least being involved in some serious scraps, I think his own words found in his text messages are sufficient evidence.

      While they may not be admissible in court, there has been no assertion made by Benjamin Crump or the family that they were not in fact text messages he sent.

      1. I have not for a fleeting second though that Travon was an angelic kid who was incapable of lifting a finger against someone. I think that you are confounding the initial way that the story broke. All anyone knew the time was Travon was unarmed. No evidence was presented then ( or now) that Travon had committed a crime.

        We have since learned that Travon was very much like many adolescents. He smoked pot, he got into a few school yard fights. You are attempting to parlay activities that an inordinate number of adolescents engage in to support your claim that Travon attempted to kill Zimmerman with his fists.

        Travon had no motive to kill Zimmerman. To be frank, Zimmerman had no motive to kill Travon either. What makes the most sense is Zimmerman pursued Travon until he cornered him. At that point the kid fought back. If Travon intended to fight Zimmerman, why did he flee?

        1. Well, I disagree that there are a lot of adolescents that go around fighting each other. I know I never did any such thing, and I was far from perfect as a child. But as for your take on what could have happened, you may be right, I don’t know. I just respectfully disagree that the evidence I know of supports your view of what happened.

          1. I can accept that. I have always enjoyed your blog and analysis.Though we disagree, you have been very respectful.

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