A recent Superior Court decision in a criminal law setting may have broad implications for civil cases as well, including those decided in family law settings. In Commonwealth v, Koch, a man was charged with possession of marijuana with the intent to deliver. At the time of his arrest he resided in the same household with his sister and another adult. The arrest resulted from a warranted search of the household where the police seized quantities of marijuana and two cellular phones. Text messages were taken from the phone and transcribed. The messages on the phone are what formed the basis of the charges relating to distribution of the illicit drugs.
When the cell phone was confiscated the defendant acknowledge the phone to be her device. The officer then downloaded the text messages, some of which he interpreted to be related to delivery of illegal drugs.
At trial the defendant sought to exclude the text messages because they had not been authenticated as her messages even though downloaded from her cellular phone. The theory behind this is that it is possible for other individuals to log on to a telephone or computer of another and make use of it for their own purposes. What gave this theory more strength was the fact in some of the messages recorded on defendant’s phone the defendant was referred to in their third person; something most people don’t do themselves.
The trial court admitted the text messages as properly authenticated and the defendant was convicted. This appeal followed. The Superior Court began by noting that text messages are electronic documents and subject to authentication before they may be admitted for the truth of what they contain. Where no witness can be found to authenticate the document by saying he or she saw it created or published circumstantial evidence may suffice. Some times documents (electronic or otherwise) can be authenticated by their own content or because the facts related are known only by the sender.
In this case the Court noted that it was not uncommon for people to have access to the electronic transmission devices of others. The majority of state appellate courts that have examined this issue have decided that the fact a message is identified with a unique email address, does not, without more allow its admission as a statement by the holder of the email account. Here the court noted that text messages, unlike email, are unique to the cell phone from which they are transmitted. An email can be published from almost every computer.
The prosecution conceded that not all of the text messages came from the defendant even though it was clear that they did come from the defendant’s phone. This appears related to the texts referring to defendant in the third person. In this case while the prosecutor could show that the defendant had physical proximity to the phone at the time the arrest was made, this alone was not sufficient to render the content of the message as authentic.
In most cases parties admit to sending texts or email early on in the proceedings. But without that admission, the burden appears to fall squarely on the party seeking to put them into evidence to come forth with a solid foundation linking the transmission to the person alleged to have made it. In this case, because that link was not made, the conviction was vacated on the charge of intent to deliver and a new trial ordered.
Although this ruling came about in a criminal case, the rules of evidence and Pa Rule 901 in particular affect all civil cases as well. If the party confronted with the message acknowledges it as his or hers, authentication is established by the party. But if the witness is not obliging, it will fall to the attorney to make the electronic transmission of whatever form “stick” to the person who owns the cellular device or electronic address.