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.

TigerText

TigerText allows you to delete text messages from both user and sender's phones. This message will self destruct in five seconds.

Like KickNotes, this app available for I-Phone and Blackberry is another in a line of developing software developing as countersurveillance in the digital world where people are demanding more privacy for their data.

Supreme Court to Take Texting Case, LOL

The Supreme Court accepted review on CITY OF ONTARIO V. QUON. The issue involves whether the City of Ontario police department violated the constitutional privacy rights of an employee when it inspected personal text messages sent and received on a government pager. A little background is useful...

The City of Ontario had issued two-way pagers to its SWAT team. The officers were told they were responsible for charges in excess of 25,000 characters a month. The City had a formal policy reserving the right to monitor “network activity including e-mail and Internet use,” allowing “light personal communications” by employees but cautioning that they “should have no expectation of privacy.” It did not directly address text messages.

Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected. The lieutenant eventually changed his mind and ordered transcripts of messages sent and received by Sgt. Quon. In one month in 2002, only 57 of more than 450 of those messages were related to official business. Many of the messages were sexually explicit in nature.

Sergeant Quon and some of the people with whom he messaged sued, saying their Fourth Amendment rights had been violated. The United States Court of Appeals for the Ninth Circuit said the department’s formal policy had been overridden by the “operational reality” of the lieutenant’s informal policy. The Ninth Circuit Court of Appeals held that the Fourth Amendment protects the contents of the text messages even if the address (in this case the telephone number) is not protected. See Ninth Circuit Blog for analysis of the Ninth Circuit opinion.

Now, the Supreme Court will decide whether the officers had a reasonable expectation of privacy with the work-issued pager; whether the police department could have found a less intrusive way to review the messages; and whether the individuals who sent the messages to a police-issued pager have a reasonable expectation of privacy that the message would be free from review by the employer. The case has large ramifications for anyone interested in the Fourth Amendment and privacy issues. Many businesses, incjavascript:void(0)luding government employers, issue cell phones, pagers, and computers to their employees so the holding could affect many people. For more coverage of this issue, see the New York Times article and the Scotus Blog.

Text Messaging Privacy Case

We all love to text, lol. The Ninth Circuit denied en banc (full court) review on a ruling that the Ontario Police Department violated an employee’s right to privacy when supervisors examined the contents of text messages sent on department pagers.

A panel of the court ruled in June that the department violated the Fourth Amendment rights of Sgt. Jeff Quon and three others to whom he sent text messages when the department obtained transcripts from the service provider and examined the messages’ contents to determine whether a monthly overage charge resulted from personal use.

The case, Quon v. Arch Wireless, 07-55282, decision available here, will not be heard en banc. For more analysis of the opinion and how to use it, check out this post from the Ninth Circuit Blog.