April 01, 2013 Top Story

Establishing That Text Messages Are Admissible

Employer retaliation—not employee resignation—triggers constructive discharge claim

Sara E. Costello

Sending text messages or short electronic messages from one cellular phone to another is a very popular form of communication. “Text messaging users send or receive an average of 41.5 messages on a typical day,” concluded the Pew Research Center’s Internet & American Life Project. This number is even greater for cellular phone owners between the ages of 18 and 24. They “exchange an average of 109.5 messages on a normal day.”

Given the volume of text messages, it is important that attorneys consider how such evidence can be authenticated and admitted at trial. Two cases demonstrate that text messages can be authenticated on the basis of their “distinctive characteristics,” pursuant to Fed. R. Evid. 901(b)(4).

The Evidentiary Standard

Evidence must be authenticated—or shown that it is what it is claimed to be—before it is admitted. Fed. R. Evid. 901(b)(4) explains that one of the ways in which a piece of evidence can be authenticated is based upon its “distinctive characteristics” or “the appearance, contents, substance, internal patterns, or other characteristics of the item, taken together with all the circumstances.”

Text Messages Have “Distinctive Characteristics”

In the North Carolina v. Wilkerson, the North Carolina Court of Appeals considered the admissibility of a text message found on a cellular phone seized from the defendant’s pocket. The defendant in this case was accused of possessing stolen goods. Upon searching the phone, the police found a text message in the phone’s sent folder, which stated: “I got a 64 inch flat Samsung.” The appellate court analyzed the text message’s admissibility pursuant to N.C. Gen. Stat. § 8C-1, Rule 901(b)(4), which is similar to Fed. R. Evid. 901(b)(4). The defendant argued that the text message should have been excluded because he was not identified as the sender of the message. The court, however, concluded that the prosecution “presented substantial circumstantial evidence” showing that the defendant sent the text message.

The distinctive characteristics of the text message included the fact that the message discussed one of the stolen goods. The court also noted that the police found the phone from which the message had been sent on the defendant. Further, at trial, an eyewitness testified that a car matching the description of the defendant’s car was in front of the victim’s house and that the driver was using a cellular phone. The records custodian from the company that provided the cellular service for the defendant’s phone also testified that multiple calls were made from the phone on the day of the crime. She also provided evidence establishing the location of the “cell towers used to transmit the calls.” A police officer then testified that he used these locations to track “the phone from the area of the defendant’s home to the area of the victim’s home and back.”

Similarly, in Gulley v. Arkansas, the Supreme Court of Arkansas ruled that three text messages were properly admitted pursuant to Ark. R. Evid. 901(b)(4). The defendant argued that the prosecution “failed to show that he actually authored the messages,” which the prosecution subpoenaed from Verizon Wireless. But the state’s supreme court examined the contents of each of the text messages and concluded that they were sufficiently authenticated on the basis of their distinctive characteristics. The court pointed to testimony from a Verizon Wireless employee establishing that the messages were sent “from a prepaid cellular telephone number assigned” to the defendant. Further, the recipients of two of the text messages testified regarding their conversations with the defendant. A witness also provided evidence establishing that the defendant was in front of the victim’s home, shortly after he sent a text message, which stated: “I’m getting dropped off over there.”

Getting Text Messages Admitted Is a Two-Step Process

When attorneys are seeking to get text messages admitted at trial, it may be helpful to view it as a two-step process. As a “first step, you need to get the technical portion correct and show that the message came from a device under the control of the person” at issue, advises D. Grayson Yeargin, Washington, D.C., cochair of the ABA Section of Litigation’s Criminal Litigation Committee. The second step requires using “circumstantial evidence” to show that the person actually sent the text message, Yeargin says.

“Make sure that you have as much circumstantial evidence as you can to buttress the text message,” suggests Sonia Escobio O’Donnell, Miami, cochair of the Section of Litigation’s Appellate Practice Committee. Attorneys cannot automatically assume that the sender of the text message is the same person that owns the phone from which the message was sent. “A lot of people don’t lock their phones or their families have access to their phones,” O’Donnell points out.

It is also critical that attorneys “look beyond the message itself,” Yeargin notes. “People will often send pictures with text messages, and this can be a good way to establish admissibility,” he advises.

Sara E. Costello is an associate editor for Litigation News.

Keywords: evidence, admissibility, text message, Arkansas, North Carolina

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