Text Messages Admissible?

The Supreme Court of Pennsylvania has accepted Commonwealth v. Koch to address whether text messages should be admissible in a criminal trial. In a drug prosecution, the Pennsylvania trial court admitted transcripts of text messages taken from the defendant's cell phone. The defendant objected to the admission of the text messages on the grounds of hearsay and authentication. The Superior Court of Pennsylvania reversed the conviction, finding that the text messages were inadmissible hearsay because the Commonwealth was not able to prove that the defendant was the author of the text messages. When dealing with electronic communications, whether as the proponent or opponent, it is important to consider both authentication and admissibility. The Pennsylvania Superior Court noted that the reason the text messages in this case were not admissible as hearsay was because the Commonwealth was not able to show who the author of the messages was. It is not enough to show that the account belongs to a person because other people can have access to accounts as noted by the Court. Similarly, the Nevada Supreme Court ruled last month in Rodriguez v. Nevada that text messages should not have been admitted into evidence where there was no evidence that corroborated that the defendant was the sender of the messages. Authentication is the precursor to admissibility so, whether proponent or opponent, the first step is whether a proper foundation has been laid that authenticates the message. Text messages are mostly being analyzed by the Courts as electronic communications so the steps similar to email accounts should be employed. Authentication can be done by a cell phone provider, a witness that saw the person using the phone, or other corroborating evidence. Pre-planning is required to have the correct witness there to authenticate the messages. Even if the text message can be authenticated, the message itself has to be relevant and otherwise admissible. The critical issue is usually hearsay and whether there is some exception. For example damaging text message could properly be considered a statement against party opponent, as noted by the Pennsylvania Superior Court, if the Commonwealth had been able to show the defendant was the author of the message. The other major consideration for text message admissibility is as impeachment evidence against a testifying witness. Again, authentication is key before a witness can be impeached with the message. It is important to leave enough time to subpoena the cell phone provider. We have collected common provider subpoena compliance information in the sidebar. When objecting to the admission of text message or other electronic communications, objections will likely be centered on authentication/foundation, hearsay, and constitutionalizing the objection with the Sixth Amendment Confrontation Clause.