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.

Little Red Rules App

Congratulations to the design team behind the Little Red Rules App Evidence Quick Reference App now available on the I-Tunes Store. The minds from the Federal Defenders of Eastern Washington and Idaho are pleased to announce the new app that contains the Federal Rules of Evidence, Drug Quantity and Sentencing Charts, select US Constitution Amendments, and selected annotations to case law. A handy reference tool for court, the jail, and where ever you may find yourself asking, "Is this hearsay?". Available for both I-Phone and I-Pad, stay tuned for Droid App.

"Crime and Clues": Cool name, informative site

Just came across "Crime and Clues", a very informative site with information on death investigation, computer forensics, digital evidence, demonstrative evidence, a training calendar, and a YouTube channel. Appears to be a good resource with many informative articles.

Gang Member "Expert"

Ongoing concern regarding trend to have a police officer testify as both the investigator or percipient witness and being elevated to an "expert witness" on why your client is guilty? check out this post from Probable Cause: "If I only had a badge" Highlights from the post:

By the time you finish reading this, you will know everything you need to know in order to testify, in court, as a gang cop.

Don’t let me mislead you: you won’t know everything you need to know to be a gang expert. That takes years of training in sociology, anthropology and/or psychology, plus a lot of field work. There are actually very few gang experts around. But you will know everything you need to know to testify, under oath, in court, about gangs and why the jury should convict any gang member about whom you testify.

The post goes on to detail the ways in which the officer who has arrested your client will be testifying as an "expert"as to why your client's actions meet the definition of the crime charged (fill in the blank).

For a great 2008 2nd Circuit Court of Appeals case addressing this issue look to United States v. Meja. A short quote from the Eleventh Circuit shows the courts growing concerns with a police officer as a percipient witness:

If the officer expert strays beyond the bounds of appropriately “expert” matters, that officer becomes, rather than a sociologist describing the inner workings of a closed community, a chronicler of the recent past whose pronouncements on elements of the charged offense serve as shortcuts to proving guilt. As the officer's purported expertise narrows from “organized crime” to “this particular gang,” from the meaning of “capo” to the criminality of the defendant, the officer's testimony becomes more central to the case, more corroborative of the fact witnesses, and thus more like a summary of the facts than an aide in understanding them. The officer expert transforms into the hub of the case, displacing the jury by connecting and combining all other testimony and physical evidence into a coherent, discernible, internally consistent picture of the defendant's guilt.

In such instances, it is a little too convenient that the Government has found an individual who is expert on precisely those facts that the Government must prove to secure a guilty verdict-even more so when that expert happens to be one of the Government's own investigators.

United States v. Meja, 545 F.3d 179, 191 (2nd Cir. 2008).

Cool Federal Evidence Review Site/Bad Case: Anonymous Cell Phone Caller Evidence Admissible?

The Sixth Circuit case of United States v. Rodriguez-Lopez, _ F.3d _ (6th Cir. May 6, 2009) considered this hearsay puzzle: is the fact that anonymous callers placed a call to a defendant’s cell phone and asked about the availability of heroin excludable as hearsay in a trial for conspiring to distribute heroin? Or could the calls be admitted as circumstantial evidence of an action from which it could be inferred that the defendant dealt in the heroin trade? In contrast to the court in Wright, the Sixth Circuit explained that under Federal Rule of Evidence (FRE) 801(c) the statements were admissible as non-hearsay since the statements were not offered to prove the truth of the matter asserted.

Mr. Rodriguez-Lopez phone was ringing off the hook when DEA Agents decided to answer the phone. Each time the phone rang, according to DEA Agents, the caller requested heroin. The Sixth Circuit reversed the district court holding that the calls were inadmissible hearsay. Here is an example of the madness:

“But whatever their grammatical mood, the statements are not hearsay because the government does not offer them for their truth. Indeed, if the statements were questions or commands, they could not … be offered for their truth because they would not be assertive speech at all. They would not assert a proposition that could be true or false....And further on..."[t]he government offers them, not for their truth, but as evidence of the fact that they were made. The fact that Rodriguez received ten successive solicitations for heroin is probative circumstantial evidence of his involvement in a conspiracy to distribute heroin.”

This posting, at FederalEvidence.com has the Sixth Circuit's analysis regarding this hearsay issue. Federal Evidence.com is a handy collection of all things evidence including the evidence blog.

Getting back to the cell phone it begs the question: If the calls aren't offered for the truth of the matter asserted, then what would be the relevance of the statements under FRE 402 and 403. If the anonymous caller asked for a pizza instead of heroin, it wouldn't be relevant. Only because it shows propensity to commit the crime of delivery is it offered, and that is precisely why it is improper FRE 404(b) evidence and should not be permitted under FRE 403.

When doing investigation dealing with this type of evidence, make sure whether they can show the phone actually belongs to your client.

Supreme Court Eases Limits on Evidence

From the New York Times:

The Supreme Court ruled Wednesday that evidence obtained from an unlawful arrest based on careless record keeping by the police may be used against a criminal defendant.
The 5-to-4 decision revealed competing conceptions of the exclusionary rule, which requires the suppression of some evidence obtained through police misconduct, and suggested that the court’s commitment to the rule was fragile.

Chief Justice John G. Roberts Jr., writing for the majority, said that the exclusion of evidence should be a last resort and that judges should use a sliding scale in deciding whether particular misconduct by the police warranted suppressing the evidence they had found.

“To trigger the exclusionary rule,” Chief Justice Roberts wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”

Justice Ruth Bader Ginsburg, writing for the dissenters, argued for “a more majestic conception” of the exclusionary rule, and a more categorical one.

Full article here.