Superior Court Refuses to Create Special Standard for Text Message Authentication

In Commonwealth v. Koch, the Superior Court reversed Amy Koch drug conviction because the trial court improperly allowed the prosecution to present evidence of text messages allegedly to and from the defendant.  In 2009, acting on a warrant obtained through information provided by a confidential informant, Cumberland County police officers executed a search warrant on the defendant’s home.  The officers seized several baggies of marijuana, several hundred dollars, and a considerable amount of drug paraphernalia.  The officers also seized two cell phones, one of which the defendant claimed was hers.  On that cell phone were thirteen text messages that referred to drug possession or delivery.  At trial, the prosecution presented these text messages as part of their case in chief in an effort to tie the defendant to the drug operation.  The defendant objected under Rule 901 of the Pennsylvania Rules of Evidence.  The trial court denied her objection, she was convicted, and appealed to the Superior Court.  The Superior Court agreed with the defendant and reversed her conviction.

Rule 901 requires authentication prior to admission of evidence.  Authentication merely means that there must be some proof that the writing is what it purports to be, that is, in order to admit the text messages, the prosecution was required to demonstrate that they were in fact messages written by the defendant.  At trial, the prosecution failed to do that.  First, there were some messages on the phone that referred to the defendant in the third person which indicates that at least as to those messages, the defendant was not the author.  Secondly, some of the messages had been deleted which created an incomplete picture of what the messages were discussing.

At trial, the prosecution relied on the fact that the cellphone was registered to the defendant for proof that she wrote the messages.  The Superior Court held that this was insufficient.  Rather than relying on “confirmation that the number belonged to a particular person,” the court sought evidence that “emails, instant messages, or text messages contain[] factual information or references unique to the parties themselves.”  If these messages contained unique identifiers such as a nickname or facts known only to the defendant, then they may have been authenticated.   This is the same standard that is and has been applied to other written documents, such as letters.  Although the Superior Court concedes that cellular phone text messages necessarily include identifying information such as the number from which a message was sent and the number which it was sent to, it also recognized that more than one person may use the same cell phone to communicate.

The Superior Court offered an alternative basis for their reversal in holding that the text messages were inadmissible hearsay.  This portion of the ruling is crucially linked to the first holding.  If the Commonwealth was able to demonstrate that the messages were written by the defendant, the messages would be admissible under the party-opponent exception to the ban of hearsay.  However, this is likely a difficult task because the authentication standard requires proof that the particular message sought admitted was written by a party, it would be insufficient to show that other messages on the phone were definitively written by a party.

Commonwealth v. Koch affects the admissibility of text messages in two ways.  First, it clearly states that there are no special rules when it comes to electronic communications, even ones that have special unique identifiers like a telephone number or IP address.  Second, it makes it much more difficult to have text messages admitted.  Although the standard is the same as for letter or other written documents, text messages lack many of the potential indicators of authorship that letters contain.  For example, most letters or notes have a salutation or are signed in some manner, even if not with a full name.  Letters may also be handwritten which could provide identifying handwriting as an alternative means for authentication.  In contrast, text messages are often abbreviated, contain no signature or salutation, and appear identical no matter who typed them out.

Read the whole opinion here.

 

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