Tuesday, September 27, 2011

Text Message, Email, and Social Media Authentication

Good news! You found some text messages that really help your case. Now, how do you authenticate them? Authentication is a prerequisite for admissibility of evidence - so like Ron Burgundy, it's kind of a big deal.

Earlier this month, the Superior Court of Pennsylvania addressed the authentication of text messages in a criminal case, Com. v. Koch, 2011 WL 4336634 (Sept. 16, 2011). As a matter of first impression, the Court held that text messages on the defendant's cell phone were not properly authenticated. Specifically, per the Westlaw Headnote:
Police detective's description of how he transcribed drug-related text messages from defendant's cellular phone, together with his representation that the transcription was an accurate reproduction of text messages on the phone, was insufficient to authenticate the identity of the author as defendant . . . [A]lthough the phone was found on the table in close proximity to defendant, Commonwealth conceded that defendant did not author all of the text messages on her phone, no testimony was presented from persons who sent or received the text messages, there were no contextual clues in the drug-related text messages themselves tending to reveal the identity of the sender.
You mean those awesome text messages aren't coming in? Yup.

Oh, and those awesome emails you have? Well, you might want to take steps to make sure you can authenticate those as well. The Court specifically noted in its analysis:
[T]he difficulty that frequently arises in e-mail and text message cases is establishing authorship. Often more than one person uses an e-mail address and accounts can be accessed without permission. In the majority of courts to have considered the question, the mere fact that an e-mail bears a particular e-mail address is inadequate to authenticate the identity of the author; typically, courts demand additional evidence.
I don't think I'm making too much of a leap here to suggest that authentication of social media may require more than just, "it came from your account" too. Ahh, applying age-old evidentiary rules in new ways... isn't this fun?

HT: My colleague Jon Stepanian (@jbstepanian) emailed me this Legal Intelligencer article on the case. Jon authors a health law and policy blog, Defense of Medicine.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.