Pennsylvania Appeals Courts Says no to Circumstantial Authentication of Text Messages — State v. Koch

[Post by Venkat Balasubramani]

State v. Koch, 2011 PA Super 201 (Sept. 16, 2011)

Courts continue to struggle with the authentication of electronic communications. Although several courts have opined that the rules of authentication are not upended by new technologies and modes of communication, courts tend to be erratic about authentication and admission of this type of evidence.

In this case, the defendant was convicted of possession of marijuana with intent to deliver and possession as an accomplice. She was sentenced to 23 months of probation. The evidence revealed that she resided with her brother (who was allegedly selling cocaine) and her paramour. Police officers obtained a warrant to search her residence and obtained drugs, paraphernalia, baggies and other items. The search also yielded two cell phones, one of which the defendant admitted was hers. One of the detectives searched the defendant’s cell phone for drug-related messages, and found thirteen messages that the detective determined were “drug-related.” Although the defendant did not admit to authoring the messages, the messages were introduced into evidence. The key issue on appeal was whether the messages were sufficiently authenticated.

The court reiterates its earlier statement that there is nothing “inherently unreliable” about emails or text messages and there is no need to create new rules governing the admissibility of this type of evidence. The court looks to case law from other jurisdictions allowing the admission of text messages and concludes that in those cases, there was more than mere “confirmation that the number or address belonged to a particular person [in question].” As a prerequisite to admission, courts have looked to whether the messages themselves contain “factual information or references unique to the parties involved.” The key issue is authorship and while an email address or number can be tied to one person, often more than one person uses an email address (email addresses can also be accessed without permission). The court says that text messages have unique attributes that affect their evidentiary treatment:

Text messages are somewhat different in that they intrinsic to the cell phones in which they are stored. While e-mails and instant messages can be sent and received from any computer or smart phone, text messages are sent from the cellular phone bearing the telephone number identified in the text message and received on a phone associated with the number to which they are transmitted. The identifying information is contained in the text messages on the cellular telephone. However, as with e-mail accounts, cellular telephones are not always exclusively used by the person to whom the phone number is assigned

Here, the detective testified that he could not be sure that the defendant authored the messages in question and the content of the messages themselves (they referred to the defendant in the third person) indicated that it was unlikely that the defendant authored some of the messages. The court says that the messages were not sufficiently authenticated. There was no testimony from the recipients or an admission from the defendant that the defendant authored the messages. Contextual clues as to authorship were absent. The court finds that the messages were not properly admitted.

The court also finds that the messages were inadmissible hearsay. The prosecution tried to argue that the messages were not being offered for the truth of the matter, but the court rejects this argument. The court says that the messages could have been admitted under the party admission exception, but given that there was a dispute as to whether the defendant authored the messages, this was not proper.

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Circumstantial authentication decisions tend to be confusing. Some courts have allowed circumstantial authentication while other courts have said no. For example, in Commonwealth v. Purdy, the Massachusetts Supreme Court says yes to circumstantial authentication of emails based on ownership of a computer (and left it up to the defendant to explain any dispute over actual authorship). In contrast, in Griffin v. Maryland the Maryland Supreme Court said no to circumstantial authentication of MySpace evidence, based in part over concerns that social networking profiles can be faked or altered without permission.

I would think that as between an email, a Facebook profile or message, or a text message, a text message is the least likely to be subject to a dispute over authorship. As the recent incident involving cell phone photos of Scarlett Johannson illustrates, cell phones are not immune from hacking. Nevertheless, fake text messages are certainly less common than fake social networking profiles, and once it’s established that the putative author was tied to the telephone number in question, it would seem that it should be up to that person to explain away any discrepancy. I would guess that most often, the reason why a text message may be sent by someone other than the owner of the telephone number in question would be because the owner implicitly or explicitly allowed another person to use their cell phone to send a message. This is not the case with Facebook posts, or even emails. In any event, in this case, the court chose to impose a higher standard and require evidence as to actual authorship, even though there was no dispute that the number was tied to the defendant.

(h/t ABA Journal)