Myt1 said:
Some texts could come in under the present state of mind or dying declaration exceptions. The ones that are being held out don't seem o meet those criteria, while the ones you seem to be contemplating probably would.
The reason a simple, "I'm with NFL," might not come in is because people lie about who they're with and where they are with some frequency.
Who knows? The text itself seemed to indicate that Lloyd's sister actually saw who he left with anyway, so the text may just be redundant if she can testify to that.
There are two main issues here as well:
1) why is the prosecution seeking to introduce the texts? (i.e., what do they purport to actually prove?)
2) is this a "final" ruling due to
403 factors? Or will opening the door/impeachment/proof issues possibly come into play?
To sort of work backwards, the threshold for all this stuff is whether the proposed piece of evidence is
relevant to the facts and issues of the case. If any given proposed piece of evidence or testimony moves the ball up or down the field, even a fraction of an inch, then it's relevant. It does not have to get a first down all on its own. That said, some pieces of evidence are pretty much worthless, or redundant, or confusing, or will inflame the passions of the jury without offering anything meaningful (say the prosecution wanting to introduce a picture of AH burning a flag to show AH knew how to operate a lighter, or introduce all 900 bullets individually into evidence.)
If some proposed piece of evidence has that kind of baggage and is minimally probative it'll be excluded under 403. Maybe the picture of AH holding a gun falls in this category? Sometimes the court will initially exclude a piece of evidence under what I think of as a "soft" 403 ruling; it's just not worth going there in light of the other evidence or possible confusion. (As opposed to what I think of as a "hard" 403 ruling that would basically result in a mistrial due to the egregiousness of the evidence.) However, if the trial develops in such a way that the excluded stuff becomes more important, the judge can revisit the ruling. Same thing if the defense opens the door on an issue or makes an improper argument. Also, you can possibly use the excluded evidence to impeach.
For the non attorneys, that means you essentially can't play "gotcha" games with excluded evidence, where you turn around and parade the absence of that excluded evidence in front of a jury. (If it's constitutionally excluded, it's another matter, but usually those cases don't get tried for just that reason.) Here, if a defense witness says something like, "Well, if Lloyd was so worried, why didn't he text someone? He'd text his sister if he got a hangnail," then yeah, those texts are coming in.
The last issue (#1 above) is that maybe in the course of the trial the texts will become relevant to prove something else. Say, for example, if the defense argues that Lloyd didn't have a phone on him that evening, or at least not early in the evening when he was picked up. Then the text might come in to show Lloyd had his phone instead of for the purpose of showing who Lloyd was with (NFL) that evening.
As stated, these seem minimally important pieces of evidence. Just thought I'd kick this around some. There are still authentication and hearsay hurdles that apply in these kinds of situations, but nothing is ever really "out" until the jury has a verdict.
(Interestingly enough, if Lloyd had taken a picture of AH that evening, the picture would probably come in.)