Commercial Litigation and Arbitration

Text Messages Insufficiently Authenticated Where Cell Owner Did Not Author All Texts on Her Phone and No Corroborating Evidence Was Offered to Show Her Authorship of Messages at Issue

Commonwealth v. Koch, 2011 PA Super 201, 39 A.3d 996 (Pa.Super. 2011):

Appellant alleges first that the trial court erred in admitting text messages into evidence that were not properly authenticated. Appellant insists there was no evidence substantiating that she was the author of the text messages, nor evidence that drug-related texts were directed to her because Commonwealth witnesses conceded that another person was using Appellant's phone at least some of the time.

Pennsylvania Rule of Evidence 901 provides that authentication is required prior to admission of evidence. The proponent of the evidence must introduce sufficient evidence that the matter is what it purports to be. Pa.R.E. 901(a). Testimony of a witness with personal knowledge that a matter is what it is claimed to be can be sufficient. Pa.R.E. 901(b)(1). See also Comment, citing Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (Pa. 1980). Furthermore, electronic writings typically show their source, so they can be authenticated by contents in the same way that a communication by postal mail can be authenticated. Circumstantial evidence may suffice where the circumstances support a finding that the writing is genuine.

/B> In the Interest of F.P., a Minor, 2005 PA Super 220, 878 A.2d 91 (Pa.Super. 2005).

While Detective Lively testified that the cellular phone from which the messages were recovered belonged to Appellant, he conceded that the author of the drug-related text messages could not be ascertained. He further acknowledged that some of the text messages referenced Appellant in the third person and thus, were clearly not written by her. N.T. Trial, 3/26/10, at 104. Furthermore, the text messages were not complete; it was evident that some had been deleted. Id. at 89.

The question of what is necessary to authenticate a text message appears to be an issue of first impression in Pennsylvania. Text messages are defined as "writings or other data transmitted electronically by cellular telephones" that constitute an electronic communication for purposes of the Wiretap Act. See Commonwealth v. Cruttenden, 2009 PA Super 109, 976 A.2d 1176, 1181 (Pa.Super. 2009), appeal granted, 21 A.3d 680 (Pa. 2011). In determining what is required to authenticate text messages, we look first to the treatment accorded other electronic communications.

In In the Interest of F.P., a Minor, supra, this Court examined the issue of whether instant message transcripts had been appropriately authenticated. The Commonwealth sought to introduce instant messages from screen name "Icp4Life30" to WHITEBOY Z. The victim identified himself as WHITEBOY Z and testified that he thought Icp4Life30 was the defendant. In that case, the victim testified about the events that occurred involving defendant. The defendant had threatened the victim via instant message, and when this was reported to the school counselor, there was a meeting between defendant and school officials. A mediation between both students was conducted by a school guidance counselor. The contents of the instant messages referred to these ongoing events and in one instance, the defendant referred to himself by his first name. Throughout, the defendant never denied sending the messages. We concluded that this circumstantial evidence sufficiently identified defendant as "Icp4Life30" and authenticated the instant message transcripts.

Importantly, in In the Interest of F.P., a Minor, supra, we rejected the argument that e-mails or text messages are inherently unreliable due to their relative anonymity and the difficulty in connecting them to their author. Id. at 95. We reasoned that the same uncertainties existed with written documents: "A signature can be forged; a letter can be typed on another's typewriter; distinct letterhead stationary can be copied or stolen." Id. Concluding that electronic communications, such as e-mail and instant messages, can be authenticated within the framework of Pa.R.E. 901 and our case law, we declined to create new rules governing the admissibility of such evidence. We held that such evidence is to be evaluated on a case-by-case basis as any other document to determine whether there has been an adequate foundational showing of its relevance and authenticity.

Our approach and rationale in In the Interest of F.P., a Minor, was cited favorably by the Supreme Court of North Dakota in State v. Thompson, 2010 ND 10, 777 N.W.2d 617, 624-627 (N.D. 2010), a case of first impression involving the authenticity of text messages. That state's highest court performed an extensive review of other jurisdictions' authenticity requirements for electronic communications generally and summarized its findings. In every case cited therein, authentication involved more than just confirmation that the number or address belonged to a particular person. Often it was important that there be evidence that the e-mails, instant messages, or text messages themselves contained factual information or references unique to the parties involved. See Thompson, supra and cases cited therein; e.g., Dickens v. State, 175 Md. App. 231, 927 A.2d 32, 36-38 (Md.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).

In People v. Chromik, 408 Ill. App. 3d 1028, 946 N.E.2d 1039, 349 Ill. Dec. 543 (Ill.App.3 2011), an Illinois appellate court held that a transcription of text messages created by the school principal as read to him by the victim was authentic. While the transcription was not completely accurate, the dates and times of text messages sent from the defendant to the victim were consistent with phone company records. The victim also testified as to the contents of the text messages and the accuracy of the principal's transcription.

Similarly, in State v. Taylor, 178 N.C. App. 395, 632 S.E.2d 218 (N.C.App. 2006), the court held that testimony from the network's strategic care specialist and the manager of a wireless store was sufficient to authenticate the transcription of the text messages sent to and from the victim's assigned cellular telephone number. The court held further that the text messages themselves contained sufficient circumstantial evidence tending to show the identity of the person who sent and received them.

Implicit in these decisions is the realization that e-mails and text messages are documents and subject to the same requirements for authenticity as non-electronic documents generally. A document may be authenticated by direct proof, such as the testimony of a witness who saw the author sign the document, acknowledgment of execution by the signer, admission of authenticity by an adverse party, or proof that the document or its signature is in the purported author's handwriting. See McCormick on Evidence, §§ 219-221 (E. Cleary 2d Ed. 1972). A document also may be authenticated by circumstantial evidence, a practice which is "uniformly recognized as permissible." Commonwealth v. Brooks, 352 Pa. Super. 394, 508 A.2d 316 (Pa.Super. 1986), (citing, e.g., Commonwealth v. Nolly, 290 Pa. 271, 138 A. 836 (Pa. 1927) (letters authenticated by contents: facts known only to sender and recipient); Commonwealth v. Bassi, 284 Pa. 81, 130 A. 311 (Pa. 1925) (unsigned letter authenticated by defendant's nickname written on it, along with contents indicating knowledge of matters familiar to both defendant-sender and witness-recipient); and McFarland v. McFarland, 176 Pa. Super. 342, 107 A.2d 615, 616, (Pa.Super. 1954)).

As these cases illustrate, the difficulty that frequently arises in e-mail and text message cases is establishing authorship. Often more than one person uses an e-mail address and accounts can be accessed without permission. In the majority of courts to have considered the question, the mere fact that an e-mail bears a particular e-mail address is inadequate to authenticate the identity of the author; typically, courts demand additional evidence.

Text messages are somewhat different in that they are 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 message 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.

Such was the case herein. Detective Lively testified that he transcribed the text messages, together with identifying information, from the cellular phone belonging to Appellant. He acknowledged that he could not confirm that Appellant was the author of the text messages and that it was apparent that she did not write some of the messages. Regardless, the trial court found that the text messages were sufficiently authenticated to be admissible. The court reasoned that doubts as to the identity of the sender or recipient went to the weight of the evidence, rather than to its admissibility.

We disagree. Authentication is a prerequisite to admissibility. The detective's description of how he transcribed the text messages, together with his representation that the transcription was an accurate reproduction of the text messages on Appellant's cellular phone, is insufficient for purposes of authentication where the Commonwealth concedes that Appellant did not author all of the text messages on her phone. We held in In the Interest of F.P., a Minor, and courts of other jurisdictions concur, that authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.

Glaringly absent in this case is any evidence tending to substantiate that Appellant wrote the drug-related text messages. No testimony was presented from persons who sent or received the text messages. There are no contextual clues in the drug-related text messages themselves tending to reveal the identity of the sender. In addition to evidence that Appellant identified the phone as hers, the trial court relied upon the fact that the cellular phone was found on the table in close proximity to Appellant.... However, we find Appellant's physical proximity to the telephone to be of no probative value in determining whether she authored text messages days and weeks before. On these facts, the admission of the text messages constituted an abuse of discretion.

Furthermore, we find merit in Appellant's position that the text messages constituted inadmissible hearsay. The Commonwealth argued at trial that the out-of-court statements were not offered for the truth of the matter asserted, and thus were not hearsay. Instead, they were offered to "prove the fact that these things were said on this phone." N.T. Trial, 5/2526/10, at 75. Counsel for the Commonwealth elaborated: "I am not offering it to prove that on this date and time she actually delivered, you know, this marijuana or - I'm just showing that these statements were made on the phone that belonged to her and that -- that these other types of statements then would constitute drug receipts, drug statements, and orders." Id. Counsel explained further that Detective Lively made a list of what he determined were thirteen drug-related texts. Id. at 77. It was the Commonwealth's intention to have the detective explain the difference between the drug-related text messages and the non-drug-related texts to show that that Appellant's phone was used in drug transactions, making it more probable that when she possessed the marijuana, she did so with the intent to deliver as opposed to personal use. Id. Based on this proffer, the trial court ruled the text message evidence admissible. For the reasons that follow, we conclude that the text messages constituted inadmissible hearsay. ***

The Commonwealth's position that the text messages were not offered for the truth of the matter is unsupported by the record. The only relevance of the text messages and precisely the reason the Commonwealth sought to introduce them was because they demonstrated an intent to deliver. The relevance was not that statements were made, but the content of the statements. The evidentiary value of the text messages depended entirely on the truth of their content. See Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (Pa. 1981). In addition, not only was the evidence improperly admitted, it was then used by the Commonwealth as the basis for the detective's expert opinion testimony that it indicated a drug exchange, and that the transaction did occur. Id. at 87, 89. The mere existence of the text messages themselves was not enough to prove PWID. The jurors had to believe the actual text of the text messages, that is, the matters asserted therein, to grasp what the text messages were offered at trial to prove.

Share this article:


Recent Posts