When Are Text Messages Admissible? The Pennsylvania Superior Court Explains

http://ow.ly/6RKl2

An article on the e-Discovery Law Review website of Cozen O'Connor by Mike Zabel.

This article touches on eDiscovery issues, and addresses the often overlooked challenge of having to authenticate electronic evidence.

The recent case in the Pennsylvania Superior Court, Commonwealth v. Koch, No.1669-MDA-2010, 2011 Pa. Super. LEXIS 2716 (Sept. 16, 2011) is discussed in the article. The article provides a link to the case's opinion.

The author states, "According to Koch, a party seeking to admit a text message as evidence at trial faces authentication requirements similar to those of a party seeking to admit a handwritten letter. A letter, for example, may bear Mr. Smith’s signature, or be printed on Mr. Smith’s stationery, but that signature may be forged, or the letterhead copied. Typically, some further authentication is needed to show that the letter is what it purports to be – i.e., a statement made by Mr. Smith. UnderKoch, the same principle applies to text messages: the mere fact that a text message came from Mr. Smith’s cell phone number is an insufficient basis to admit that text message as a statement made by Mr. Smith. Additional evidence of the sender’s identity is needed."

The author goes on to point out, "With Koch, the Pennsylvania Superior Court has made clear that an individual’s mere association with an e-mail account or cell phone number is an insufficient evidentiary basis for admission of a text message, e-mail, or instant message. A party seeking to introduce electronic communications at trial should be prepared to produce circumstantial evidence that corroborates the identity of the supposed sender."  In this case the appellate court reversed the trial court and held that the evidence should not have been admitted.

The author points out that the court stated, "...the court found that evidence showing that the defendant had written the text messages found on her phone was “[g]laringly absent.” The court noted that there was no confirming testimony from the senders or recipients of the disputed messages and no contextual clues within the messages themselves that revealed the identity of the sender."