Texts — Authentication Standards for Text Messages = Same as for Emails — Testimony from Memory of One Party, Refreshed by Looking at Own Cell Phone, Suffices — Others’ Access to Phone Goes to Weight

State v. Elseman, 287 Neb. 134 (2014):

Ryan M. Elseman appeals his convictions in the district court for Douglas County of first degree murder and use of a deadly weapon to commit a felony. Elseman claims that the court erroneously admitted evidence regarding the content of certain text messages.***

The Content of Text Messages Was Authenticated.

Elseman first claims that the court erred when it admitted evidence regarding the content of text messages sent to and from Elseman's cell phone around the time of the killing because the text message evidence was admitted without satisfying the authentication requirement of Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901(1) (Reissue 2008). Rule 901 states, in relevant part: "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." We determine that the authentication requirement was met, and there is no error in this regard.

[4] We have stated that rule 901 does not impose a high hurdle for authentication or identification. State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011). A proponent of evidence is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity. Id. If the proponent's showing is sufficient to support a finding that the evidence is what it purports to be, the proponent has satisfied the requirement of rule 901(1). Id.

The evidence about which Elseman complains includes Emily's testimony regarding the content of text messages sent between herself and Elseman near the time Winters was killed. He also complains of evidence about which police investigators testified regarding text messages found on Emily's cell phone. Elseman's concern stems from the fact that it could not be ruled out that some other person sent or received the messages while using Elseman's cell phone.

In State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011), we considered a rule 901 challenge to the admission of evidence of the content of e-mail correspondence purportedly written by the defendant. We stated that e-mails could be authenticated by evidence such as

   the e-mail address[, t]he signature or name of the sender or recipient in the body of the e-mail[, e]vidence that an e-mail is a timely response to an earlier message addressed to the purported sender[, or] the contents of the e-mail and other circumstances [that] may be utilized to show its authorship.

 

281 Neb. at 860, 800 N.W.2d at 229. We further stated in Pullens that "[t]he possibility of an alteration or misuse by another of the e-mail address generally goes to weight, not admissibility." Id.

The reasoning we used with regard to the evidence of e-mail correspondence in Pullens applies to the rule 901 challenge to the evidence of the content of text messages in this case. Under rule 901, the State as the proponent of the evidence was not required to conclusively prove that Elseman authored the messages  or to rule out that someone else may have written the messages using Elseman's cell phone. Courts in other jurisdictions have held that electronic messages such as e-mails and text messages may be authenticated by circumstantial evidence establishing that the evidence was what the proponent claimed it to be. See State v. Thompson, 777 N.W.2d 617 (N.D. 2010) (collecting cases). We determine that in this case, the State provided sufficient evidence to authenticate the text messages.

With regard to the specific evidence of which Elseman complains, we note that Emily testified regarding Elseman's telephone number based on her own memory, which was refreshed by looking at her cell phone. She also testified from her own memory regarding the content of text messages between herself and Elseman. It was clear that the foundation for Emily's testimony was her own memory regarding messages she had sent to and received from Elseman. Rule 901, upon which Elseman relies on appeal, did not prohibit Emily from testifying regarding her memory of messages sent between herself and Elseman. 

Elseman also complains of the testimony of three law enforcement offiers involved in the investigation in this case--Herfordt,  Ficenec, and Schneider. Herfordt testified only to the techniques he used to extract data from Emily's cell phone; he did not testify regarding the content of text messages, and Elseman made no objection based on foundation or authentication regarding Herfordt's testimony. Elseman notes and we recognize that Herfordt testified that data extracted from the cell phone did not indicate who actually sent the messages. The jury was allowed to take this testimony into consideration. Elseman shows no error in the court's allowing Herfordt's testimony.

Ficenec and Schneider testified regarding the content of text messages extracted from Emily's cell phone. The two witnesses testified regarding the content of text messages and the telephone numbers from which and to which messages were sent. Although the number from which messages were sent and received was the number that Emily identified as belonging to Elseman, neither law enforcement officer testified that it was Elseman who sent the message, and both conceded that the data extracted from the cell phone could not verify who sent the message. The officers provided testimony regarding how they obtained the information extracted from the cell phone.

Because the officers testified regarding messages sent between only certain numbers and they did not purport to identify the specific persons who sent the messages, we determine that rule 901, upon which Elseman relies on appeal, did not prohibit the court from admitting such testimony. For purposes of rule 901, there was sufficient testimony to establish that the evidence was what the State claimed it to be--messages sent between certain telephone numbers. It was then within the jury's province to determine whether it could be reasonably inferred that Elseman sent or received the messages. The authentication requirement of rule 901 was met, and we determine that the district court did not err on the basis of rule 901 when it admitted testimony by Emily and by the police officers regarding the content of the text messages. We reject this assignment of error.

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