Pennsylvania Case Addresses Authenticating Text Messages

On 16 September 2011, the Pennsylvania Superior Court in Comm. v. Koch, 2011 PA Super 201 (Sept. 16, 2011) (slip-opinion) re-emphasized
"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." Id. at *14. The case was one of first impression regarding the issue of authenticating text messages. Id. at *9.

According to the facts, police seized a cell phone during a drug raid. Id. at *1–*3, *6. A police officer then “transcribed” the content of text messages on the cell phone and opined that some of the messages involved drug sales. Id. at *2, *6–*7, *14. The prosecution introduced the messages into evidence apparently to substantiate the drug charges. Id. at *2–*3, *15–*16.

Analysis of Admissibility of Text Messages

The discussion of admissibility of the text messages begins on *7. The case is one of first impression regarding authentication of text messages. Id. at *9.

First, the court re-emphasized

"that e-mails or text messages are [not] inherently unreliable due to their relative anonymity and the difficulty in connecting them to their author."
Id. at *10. Thus, text messages can be admitted as evidence if properly and adequately authenticated.

Second, authenticating text messages follows the same rules as authenticating any other documentary evidence. Id. at *10, *12. In this case, the prosecution failed to provide adequate circumstantial or direct evidence substantiating the authorship of the text messages, id. at *14–*15: "Glaringly absent in this case is any evidence tending to substantiate that Appellant wrote the drug-related text messages." Id. at *14. Simply copying-down the messages, even if allegedly accurate, and admission of ownership of the cell phone by the party were inadequate to prove authorship of the text messages. Id. at *14.

Third, and perhaps most interesting, is the court’s recognition that text messages were inadmissible hearsay because the messages, despite claims by the prosecution, were offered for the truth of the matter asserted. Id. at *16. That is, the issue was not whether some text messages were sent or received but were the drug-related text messages, a sub-set of all text messages on the cell phone, sent or received on the target cell phone? The latter plainly reaches the content of the messages, and thus the messages, as offered, were hearsay.

Parting Comments

Koch plainly illustrates that (1) technology-related materials require the same rigor of authentication as other evidence and (2) authentication is a material part of admitting evidence (not simply perfunctory or a vague “weight” issue after admission). Technology-amnesia or technology-fog, that is treating electronic evidence differently or applying a lower threshold apparently because the purported evidence is technology-related, simply cannot be sustained when technology-related evidence figures in a matter—civil, criminal, or administrative. (See also Pennsylvania Court Opinion Implicates Authentication of Social Media Evidence.)

The Next Battleground?

The next battleground will [finally] challenge the constitutionality of the Stored Communications Act (18 USC 2701 et seq.) and Pennsylvania analog in the Pennsylvania Wiretap Act (18 Pa. CS 5741 et seq.) Even if the prosecution adequately authenticated the messages and the court admitted the evidence, the accused might struggle to obtain impeachment evidence from electronic storage providers due to the federal Stored Communications Act and Pennsylvania’s Stored Wire and Electronic Communications Act. See 18 USC 2703 and 18 Pa. CS 5743. These acts permit ready access to such information for government entities but not necessarily to the accused. Thus, simply re-framing Koch as a “weight” issue raises a second problem potentially related to the adequate access to stored electronic communications by an accused.

Publication Information

Original Publication: 21 September 2011
The Next Battleground Update: 26 September 2011