Text Message Adequately Authenticated by Sender’s Name as Stored on Cell Phone Atop Message, Sender’s Customary Signature, and Her Testimony That She “Could Have” Sent It

From State v. Thompson, 777 N.W.2d 617 (N.D. Sup. Ct. 2010) (construing North Dakota Rule of Evidence 901(a), which is identical to Federal Rule of Evidence 901(a)) (assault prosecution):

At trial, the complainant testified on direct examination about several text messages sent to him on October 31, 2008. He testified he knew the text messages were from Thompson because the messages said "Fr: Jen" at the beginning, which was the way he stored her phone number in his cell phone, and the end of the message included her phone number and her signature, "cuzImJenIcan," which he was familiar with. *** The complainant *** testified *** that during the course of several text messages that day, Thompson made threats toward him, including one specific profane threat.

During Thompson's case, she testified she sent several text messages to the complainant on October 31, 2008. On cross-examination, she testified about the text messages, including that she could have sent the complainant one specific profane and threatening text message. ***[T]he court *** admonished the jury that evidence about the text messages was allowed for a limited purpose to show Thompson's state of mind. During further cross-examination of Thompson, the State offered into evidence a picture of one specific text message sent at 8:20 a.m., which included profane and threatening language. ***

Thompson thereafter testified the complainant may have used her phone to send that message to himself, and the court allowed the State to introduce the picture of the text message with further "appropriate evidentiary foundation." The State elicited further foundational testimony from Thompson about her cell phone number and her signature for text messages, which were both depicted on the picture of the text message. The State again offered the picture of the text message into evidence, and the court allowed the jury to see the picture***.

Rule 901(a), N.D.R.Ev., deals with the procedure for authenticating evidence and provides that the "requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Rule 901(a), N.D.R.Ev., is identical to F.R.Ev. 901(a), and we may consider persuasive federal authority in construing our rule. ***

Although this Court has not previously considered an issue about the foundational requirements for the admissibility of text messages, other courts have held that similar electronic messages were authenticated by circumstantial evidence establishing the evidence was what the proponent claimed it to be. See United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000) (e-mails properly authenticated when they included defendant's e-mail address, the reply function automatically dialed defendant's e-mail address as sender, messages contained factual details known to defendant, messages included defendant's nickname, and messages were followed with phone conversations on same topic); United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000) (foundational requirement for chat room conversation established when defendant admitted he used screen name "Cessna" when he participated in recorded conversations, several co-conspirators testified he used that name, and defendant showed up at meeting arranged with person using screen name "Cessna"); United States v. Simpson, 152 F.3d 1241, 1249-50 (10th Cir. 1998) (authentication established when chat room printout showed individual using name "Stavron" gave officer defendant's name and address and subsequent e-mail exchanges indicated e-mail address belonged to defendant); United States v. Safavian, 435 F. Supp. 2d 36, 40 (D.D.C. Cir. 2006) (e-mail messages held properly authenticated when the e-mail addresses contain distinctive characteristics including the e-mail addresses and a name of the person connected to the address, the bodies of the messages contain a name of the sender or recipient, and the contents of the e-mails also authenticate them as being from the purported sender to the purported recipient); Dickens v. State, 175 Md. App. 231, 927 A.2d 32, 36-38 (Md. Ct. Spec. App. 2007) (threatening text messages received by victim on cell phone were properly authenticated when circumstantial evidence provided adequate proof message was sent by defendant); Kearley v. Mississippi, 843 So.2d 66, 70 (Miss. Ct. App. 2002) (e-mails adequately authenticated when witness vouched for accuracy of e-mail printouts and police officer testified defendant admitted sending e-mails); State v. Taylor, 178 N.C. App. 395, 632 S.E.2d 218, 230-31 (N.C. Ct. App. 2006) (text messages properly authenticated when telephone employees testified about logistics for text messages and about how particular text messages were stored and received and messages contained sufficient circumstantial evidence the victim was the person who sent and received the messages); In re F.P., 2005 PA Super 220, 878 A.2d 91, 93-95 (Pa. Super. Ct. 2005) (instant messages properly authenticated through circumstantial evidence including screen names and context of messages and surrounding circumstances); Massimo v. State, 144 S.W.3d 210, 215-17 (Tex. App. 2004) (e-mails admissible when victim recognized defendant's e-mail address, e-mails discussed things only the victim, defendant, and few others knew, e-mails written in way defendant would communicate, and third-party witnessed defendant sending similar threatening e-mail); see generally 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, at § 901.08[3] and [4]; 5 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence, at § 9:9; 5 Stephen A. Saltzburg, Michael M. Martin, & Daniel J. Capra, Federal Rules of Evidence Manual, at § 901.02[12].

In F.P., 878 A.2d at 95 (citation and footnote omitted), the Pennsylvania Superior Court aptly rejected an argument that electronic messages are inherently unreliable because of the messages' relative anonymity:

Essentially, appellant would have us create a whole new body of law just to deal with e-mails or instant messages. The argument is that e-mails or text messages are inherently unreliable because of their relative anonymity and the fact that while an electronic message can be traced to a particular computer, it can rarely be connected to a specific author with any certainty. Unless the purported author is actually witnessed sending the e-mail, there is always the possibility it is not from whom it claims. As appellant correctly points out, anybody with the right password can gain access to another's e-mail account and send a message ostensibly from that person. However, the same uncertainties exist with traditional written documents. A signature can be forged; a letter can be typed on another's typewriter; distinct letterhead stationary can be copied or stolen. We believe that e-mail messages and similar forms of electronic communication can be properly authenticated within the existing framework of Pa. R.E. 901 and Pennsylvania case law. We see no justification for constructing unique rules for admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.

Here, the district court heard sufficient evidence from the complainant, including the circumstances of that day and his knowledge of Thompson's cell phone number and signature on text messages, to authenticate the complainant's testimony about the text messages he received on October 31, 2008. That evidence was sufficient to authenticate the complainant's testimony under N.D.R.Ev. 901(b)(1) and (4).

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