Commercial Litigation and Arbitration

Text / Email Admissibility — Direct Evidence Not Essential; Circumstantial Evidence Sufficient — Idaho Supreme Court, Construing Evidence Rules Identical to Fed. R. Evid.

State v. Koch, 2014 Ida. LEXIS 243 (Ida. Sup. Ct. Sept. 4, 2014):

Michael Eugene Koch appeals from his judgment of conviction, entered following a verdict, for four counts of lewd conduct with a minor under sixteen. On appeal, Koch argues that the Ada County district court made multiple errors in the admission of evidence that warrant reversal of his judgment of conviction. We affirm.


C. The district court did not abuse its discretion in overruling Koch's foundation [*11]  objections. Koch contends that the district court abused its discretion in overruling his foundation objections to testimony describing various text and email messages sent by Koch to C.C. and to C.C's mother. He also contends that the court erred in overruling his foundation objections to the admission of the confrontation call recording. In reply, the State argues it provided proper foundation and that defense counsel's concerns go to the weight of the evidence, not its admissibility.

The Idaho Rules of Evidence require "authentication or identification as a condition precedent to admissibility," which "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." I.R.E. 901(a). Rule 901(b) contains an illustrative, but not exhaustive, list of suggested methods of identification, such as "[t]estimony of a witness with knowledge that a matter is what it is claimed to be" or examination of the evidence's "distinctive characteristics and the like," including "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." I.R.E. 901(b)(1), (4). Whether there is a proper foundation upon which to admit evidence [*12]  is a matter within the trial court's discretion. Harris, Inc. v. Foxhollow Constr. & Trucking, Inc., 151 Idaho 761, 770, 264 P.3d 400, 409 (2011).

 This Court has not previously considered the foundational requirements for admitting emails and text messages. However, the Court of Appeals has considered the admissibility of online chat room transcripts in State v. Glass, 146 Idaho 77, 190 P.3d 896 (Ct. App. 2008). There, the Court of Appeals held that the State laid an adequate foundation "because the State's evidence was sufficient to show that the transcript and the profile-and the person behind the screen name-were connected to the alleged criminal behavior that formed the basis of the charge." Id. at 81-82, 190 P.3d at 900-01. The Court of Appeals elaborated that even if evidence tying the defendant to the screen name was necessary before the exhibits could be admitted, that foundation was provided because the defendant arrived for a meeting as arranged in that private correspondence. Id. at 82, 190 P.3d at 901.

 Because Idaho Rule of Evidence 901 is based on Federal Rule of Evidence 901, how other jurisdictions have interpreted the federal rule's requirements with regard to the admission of emails and text messages is instructive in this case. Other jurisdictions have recognized that electronic evidence may be authenticated in a number of different ways consistent with Federal Rule 901 and corresponding state statutes. Courts have not required proponents [*13]  offering printouts of emails, internet chat room dialogues, and cellular phone text messages to authenticate them with direct evidence, such as an admission by the author or the testimony of a witness who saw the purported author typing the message. See, e.g., United States v. Fluker, 698 F.3d 988, 999 (7th Cir. 2012). Rather, courts have held that circumstantial evidence establishing that the evidence was what the proponent claimed it to be was sufficient. See, e.g., State v. Thompson, 777 N.W.2d 617, 624 (N.D. 2010) (providing a comprehensive review of other jurisdictions' authenticity requirements for electronic communications). Circumstantial proof might include the email address, cell phone number, or screen name connected with the message; the content of the messages, facts included within the text, or style of writing; and metadata such as the document's size, last modification date, or the computer IP address. See Fluker, 698 F.3d at 999; United States v. Siddiqui, 235 F.3d 1318, 1322-1323 (11th Cir. 2000); United States v. Safavian, 435 F. Supp. 2d 36, 40-41 (D.D.C. 2006).

In support of his argument that eyewitness testimony is necessary to authenticate a text message when the defendant does not admit to sending it, Koch points to the Nevada Supreme Court decision, Rodriguez v. State, 273 P.3d 845, 849 (Nev. 2012). However, Rodriguez is in line with what the majority of jurisdictions have held. Id. at 849 (requiring either direct or circumstantial corroborating evidence of authorship in order [*14]  to authenticate a text message). The facts of Rodriguez are unique and distinguishable from the case at hand. In Rodriguez, the text messages in question were sent from the victim's phone, which the defendant and his codefendant took from the victim after assaulting her. Id. at 849-50. Thus, the State sought to introduce text messages that were sent from a phone while it was in the possession of two people, neither of which was the owner of the phone. Id. The Nevada Supreme Court ruled that the only text messages admissible against the defendant were the text messages the defendant could actually be seen sending on bus surveillance video. Id. at 850. The court required actual proof of the defendant sending the text message because there was direct evidence that the text messages were sent while the phone was in the possession of multiple people other than the phone's actual owner. Rodriguez does not stand for the proposition that eyewitness testimony of who sent a text is required for its authentication, but rather that where evidence establishes that a phone is in multiple people's possession at the time incriminating messages are sent, a higher level of proof that the defendant sent the incriminating messages [*15]  is required.

While direct evidence is not required to authenticate a text message or email, most jurisdictions require something more than just confirmation that the number or email address belonged to a particular person. See, e.g., In re F.P., 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); Commonwealth v. Williams, 926 N.E.2d 1162 (Mass. 2010) (admission of MySpace message was error where proponent advanced no circumstantial evidence as to security of MySpace page or purported author's exclusive access). Often it was important that there be evidence that the emails, instant messages, or text messages themselves contained factual information or references unique to the parties involved. For example, in Safavian the District of Columbia federal district court held that email messages were properly authenticated where the email addresses contained distinctive characteristics including the name of the person connected to the address, the bodies of the messages contained a name of the sender or recipient, and the content of the emails further authenticated them as being from the purported sender to the purported recipient. 435 F.Supp.2d at 40.

Courts have acknowledged [*16]  the unique problems that arise in the context of authenticating electronic communications. The Connecticut Court of Appeals noted that authentication is especially important in this context "because an electronic communication, such as a Facebook message, an email or a cell phone text message, could be generated by someone other than the named sender." State v. Eleck, 23 A.3d 818, 822 (Conn. App. 2011). In response to such concerns, the Superior Court of Pennsylvania aptly stated:

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.

In re F.P., 878 A.2d at 95. The court [*17]  then concluded that email messages and similar forms of electronic communication can be properly authenticated within the existing framework, i.e., 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." Id. at 96.

As the reasoning of these jurisdictions illustrates, establishing the identity of the author of a text message or email through the use of corroborating evidence is critical to satisfying the authentication requirement for admissibility. We thus conclude that, when there has been an objection to admissibility of a text message, the proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission. Thus, authenticating a text message or email may be done in much the same way as authenticating a telephone call under Idaho Rule of Evidence 901(b)(6).

1. Text messages to C.C.'s mother

C.C.'s mother testified that she received two text messages from Koch. Before testifying as to the content of the first text message, [*18]  C.C.'s mother testified that she had previously received text messages and phone calls from Koch on her cell phone and that Koch's phone number would appear on her phone when he called. When C.C.'s mother received the first text message, she testified that the incoming phone number was the same as the as the one utilized by Koch when he had previously called. As to the second text message C.C.'s mother testified to, she explained that she had obtained a new cell phone and so did not recognize the number sending the message. C.C.'s mother testified that she responded by inquiring as to the identity of the sender, who then identified himself as Michael Koch.

As to the contents of the first message, C.C.'s mother testified:

The text message said that he was very sorry that C[.] and T[.] were no longer friends, but blamed it all on T[.], that T[.] was too clingy and that he wanted to thank me for allowing them to have been part of C[.]'s life, that she was an amazing young woman.

As to the second text, while C.C's mother did not recognize the phone number, the sender identified himself as Michael Koch. The sender also stated that someone had hacked into his computer and was sending emails [*19]  under his name.

There was insufficient foundation laid prior to the admission of the content of the first text message C.C.'s mother received. While C.C.'s mother testified that she recognized the number as Koch's and had communicated with him previously at that number, more than just confirmation that the number belonged to the person in question is required when the message's authentication is challenged. See I.R.E. 901(a) ("authentication or identification as a condition precedent to admissibility"). However, the reference to Koch's daughter's friendship and recent fight with C.C. was sufficient to confirm the sender's identity as Koch. Thus, the content along with the identity of the number furnished sufficient authentication or identification to support admissibility. It was unnecessary for the State to present evidence, as Koch contends, that someone saw Koch actually send the message.

 There was also insufficient foundation laid as to the second text message C.C.'s mother testified to receiving. C.C's mother testified that she did not recognize the number and relied on the sender's assertion that he was Michael Koch. This self-identification would likely be sufficient if the State had provided [*20]  evidence that the number sending the text was connected to Koch.[2] However, copies of these texts were not offered into evidence, and C.C.'s mother did not recognize the number, so there is no evidence beyond the self-identification connecting the text to Koch. The content of this text also did not provide any connection to Koch. Therefore, the district court abused its discretion in overruling Koch's objection. Koch does not argue that the admission of the second text message was prejudicial. Indeed, the second text message actually supports Koch's argument that he did not send the preceding, much more damaging text message. Thus, any error in admitting testimony regarding this second text message was harmless.

2. Text Messages to C.C.

Before C.C. testified about the text messages she exchanged with Koch on October 27, 2011, she testified that she had called and talked with Koch on her phone in the presence of detectives as part of the investigation into Koch's conduct.[3] C.C. also testified that she called Koch again several days later at the same phone number and the call went to Koch's voicemail. She testified that she left a voicemail asking Koch to call her, which she followed [*21]  up with a text message asking him to call her. C.C. identified State's Exhibit 17 as photographs depicting her text message conversation with Koch. She also identified the two phone numbers displayed on the text messages as hers and Koch's, respectively.

Koch objected to the admission of these text messages at trial, and the district court allowed Koch's counsel to question C.C. in aid of his objection.

COUNSEL: Were you present on the other end with the person that was entering these text messages?

THE WITNESS: No, but he'd made --

COUNSEL: Okay. I just need you to answer the question. Were you present on the other end with the person who made these text messages?


Koch's foundation objection appears to have been based solely on the fact that C.C. could not provide eyewitness testimony that Koch was sending her the text messages. He did not ask C.C. any questions concerning how she knew it was Koch responding to her texts. Indeed, C.C. attempted to explain how she knew it was Koch when defense counsel cut her off.

Here, the State provided adequate foundation for the admission of the text messages, especially in light of Koch's objections only pertaining to the lack of direct, [*22]  eyewitness evidence. C.C. testified that she recognized Koch's number and had previously been in frequent communication with him via text message. Thus, the State provided "testimony of a witness with knowledge that a matter is what it is claimed to be." See I.R.E. 901(b)(1). Moreover, the content of the messages further corroborates C.C.'s identification of Koch as being the sender. See I.C.R. 901(b)(4) ("Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances."). For example, the sender referenced Koch's daughter by name [Koch's daughter, T.K., was a classmate and friend of thirteen-year-old C.C.], noting at one point that he had a birthday present for C.C. from his daughter.[Footnote 4.  During cross-examination of Koch's daughter, she corroborated that she had a birthday present for C.C. and that her father offered to take it to C.C.] In her texts, C.C. makes several references to her phone call with Koch on October 6, 2011, apologizing for asking him questions while his daughter was in the car. The sender also made specific reference to the content of the previous phone call, asking, without any prompting, who told C.C. that he was getting divorced. This is more than sufficient circumstantial evidence to establish foundation for the admission of the text message conversation. Questions Koch raises about the lack of eyewitness testimony [*23]  establishing that he sent the actual texts goes to the weight of the evidence, not the admissibility. Therefore, the district court did not abuse its discretion in overruling Koch's foundation objections to the admission of the text messages C.C. received from a number she identified as Koch's.

3. Email Message to C.C.

Prior to testifying about the content of an email she received from Koch, C.C. testified that she was familiar with Koch's email address because it was identified within her email account contact list as belonging to Koch. Koch possessed C.C.'s email address, C.C. explained, because Salina Koch, Koch's wife, utilized it for Girl Scout communications. In addition to C.C.'s testimony that Koch had previously communicated with her via email and that she recognized the email address, the content of the email provides sufficient circumstantial evidence to constitute adequate foundation. While the actual email does not appear to have been offered into evidence, C.C. testified that "[h]e had emailed me asking if my dad was okay because my dad is a fire fighter and there had been an accident with some fire fighters and he was just checking to see if my dad was okay."

The fact that [*24]  C.C.'s father was a fire fighter is the type of information a family friend with whom C.C. had spent substantial amounts of time with would know. Additionally, Koch mentions this email specifically in the text message exchange that occurred between himself and C.C., although the text messages were entered into evidence subsequent to C.C.'s testimony regarding the email. Therefore, the content of the email was admissible because it contained references unique to C.C. and Koch.

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