PA appeals court finds text messages not properly authenticated

In Commonwealth v. Koch, 2011 WL 4336634 (Pa. Super. Ct. 2011), the court held that text messages were not properly authenticated and should not have been admitted as evidence. The detective "testified that he transcribed the text messages, together with identifying information, from the cellular phone belonging to Appellant. He acknowledged that he could not confirm that Appellant was the author of the text messages and that it was apparent that she did not write some of the messages. Regardless, the trial court found that the text messages were sufficiently authenticated to be admissible." Neither the alleged sender or recipient testified at trial to authenticate the messages.

Courts often require a heightened standard for admission of electronic evidence because of the ease of falsifying this information, and a phone number or e-mail address tying it to the supposed sender is insufficient. Parties must take it further in order to show the alleged author was, in fact, the author. Other courts have shown admission of text messages by:

• Testimony from cell phone company, investigator, and co-conspirators (United States v. Hunter, 266 Fed.Appx. 619 (9th Cir. 2008))
• Recipient testifying that messages were received on his phone under the author's name and that each contained the author's unique signature (State v. Thompson, 777 N.W.2d 617 (N.D. 2010)) (Note, however, that the issue in Koch was that the cell phone was used by multiple people. Thus, a unique signature may not be influential.)
• Text messages contained details only the defendant would know (Massimo v. State, 144 S.W.3d 210, 216 (Tex. App. 2004))
• Author providing their car model and name (State v. Taylor, 632 S.E.2d 218 (N.C. Ct. App. 2006))
• Message showing up under saved number on witness's phone, victim's phone was found near her body, and evidence suggested no one had used her phone that day (State v. Damper, 225 P.3d 1148 (Ariz. Ct. App. 2010))

Many cases look to authentication requirements of electronically stored information (ESI) generally and do not apply specific rules for a specific type device. Therefore, authentication rules applying to e-mails or Facebook posts might also work for text messages. For example, a text message from Author saying he will go to a certain place at a certain time and evidence showing that he was there at that time, would be properly authenticated. Commonwealth v. Amaral, 78 Mass. App. Ct. 671 (2011).