Text Message Must Be Authenticated Before Being Admitted

Text messages require the same authentication as other documents before they can be used as evidence, the Superior Court of Pennsylvania ruled.

Noting that it was a case of “first impression,” the court found that text messages are intrinsic to the cell phones on which they are stored and “identifying information is contained in the text message.”  Nevertheless, because the phones are not always exclusively used by the person to whom the number is assigned, the text message must be authenticated.

The case involved a conviction for intent to deliver marijuana.  The police seized a cell telephone that the defendant identified as hers.  The police transcribed what it said were 13-drug related text messages found stored in the phone.  However, the police officer testified that he could not determine who wrote the text messages and further acknowledged that some of the text messages referenced the defendant in the third person “and thus, were clearly not written by her.”

“Glaringly absent in this case is any evidence tending to substantiate that Appellant wrote the drug-regulated 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 the 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,” the opinion stated.

In addition, because there was no proof that defendant wrote the messages, the messages also were inadmissible as hearsay.

Because the text messages were “highly prejudicial,” the appellate court reversed the guilty finding and remanded the case for a new trial.

Commonwealth of Pennsylvania v. Koch, Superior Court of Pennsylvania, No. 1669 MDA 2010.