Our Pittsburgh litigation attorneys keep a close eye on new developments in the law. In order for us to prevail in court (representing either the plaintiff or defendant) we have to be keenly aware of developments concerning the admissibility of evidence. The newest “hot topic” in this area of law is texting.
When are texts admissible? Right now, in Pennsylvania, the courts are struggling with this.
Why Do We Care About Text Messages as Evidence?
Almost every case (including civil and criminal actions) can turn on the fact of a text message between the parties or involving any witness. How do these issues come up?
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Did any witness (one of parties or someone else) text something that contradicts his or her testimony in court?
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Personal injury cases: Was the defendant texting while driving?
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Breach of contract cases: Does a text help explain the parties’ understanding of the deal?
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Criminal case: Did the defendant or one of the witnesses text something about the scene of the crime or where it happened?
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Divorce Law: Was one party cheating on the other spouse and texting the paramour?
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Custody: What communications are taking place between the parents and children?
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All cases: did a witness text one of the parties, showing bias on confirming (or contradicting) a statement in court?
Why Do the Courts Struggle with the Admissibility of Texts?
In order for any written or electronic form of evidence to admissible, it must have both:
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Authentication (that which the document purports to be); and
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Relevance (tending to prove or disprove a material fact in the case).
With regard to text messages, the courts struggle with the authentication requirement. Just because a text came from the Defendant’s phone does not mean that he created the text or that the text is “authentic.” He could have set his phone down such that anyone in the world could have picked up the phone and made the text. The same is true for emails, parenthetically. Just because an email originated from the Defendant’s account does not mean he sent it.
Some History of the Law
This isn’t the first time that a relative new technology cause head aches for the judicial system. In fact, it has happened quite often over time.
Contracts Under Seal
At one time, it was fashionable for a contract to be endorsed then placed “under seal.” This was done by placing a special imprint on the agreement or by dripping was onto the folded document. What made this special was, a contract “under seal” did not need certain other formalities, such as consideration (which not just one party makes a promise, but both parties agree to do something relative to the contract). Although the use of dripped wax was replaced in favor of a seal “sticker,” the concept of any kind of seal became inherently unworkable with modern printing and copying. That said, even today, some parts of the law give special treatment to contracts “under seal.”
For example, in Pennsylvania and only two other states, a contract concerning an instrument (such as a mortgage) has a twenty year statute of limitations, versus four years, otherwise.
Livery of Seisin
(Pronounced – “Live-ery of Season”). What the heck of that is that, you ask? It has to do with an archaic legal ceremony to convey title of property. Imagine going to the closing on your home, and instead of just signing a bunch of papers at a closing company’s office, you also have to transfer a handful of actual dirt, a stone, or twig from the property as part of the ceremony? That was livery of seisin. It was a necessary part of the transfer of real property. Such transfers, however, have no place in the modern age of electronic data storage.
Photocopying
Before Xerox and other companies perfected photocopying, agreements were signed in duplicate or triplicate, creating multiple originals, or one document was signed and behind it was a page with carbon on it, which transfer the carbon to “carbon copies.” But then came the idea of photostatic copies (and faxes) and the courts had a decision to make: would a photostatic copy be admissible in court? The courts struggled, temporarily, but then agreed on the modern solution: a photostatic static copy is admissible, “unless (1) a genuine question of fact is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” Pennsylvania Rule of Evidence 1003.
Social Media – Facebook, Twitter, Linkedin, etc. Prior to trial, the parties do something called “discovery,” where they share information and get information from third parties. The parties often seek to discovery posting on social media sites or the identify of persons with whom they are “friended” (to show potential bias or otherwise). However, websites like Facebook would soon go out of business if they spent all their time responding to requests from lawyers about posts online. This remains an evolving area of law. Recently, Judge William R. Carpenter (Montgomery County Court of Common Pleas) permitted a Plaintiff so obtain the Defendant’s Facebook user name and password. See Gallagher v. Urbanovich, No. 2010 – 33418 (C.P. Mont. Co. Feb. 27, 2012 Carpenter, J.).
What Will the Courts Do About the Admissibility of Texts, Ultimately?
A number of judges at the the trial court level (not appellate level) have already ruled on this. The most common sense rule so far is this: allow the fact of the text to come in as evidence and use a “weight of the evidence standard,” meaning, the party opposing the text can offer evidence to show how or why the text is not authentic, and let the judge or jury deciding the case weigh all the evidence.
In the case of In the Interest of F.P. , decided in 2005 state Superior Court decided circumstantial evidence may be used to authenticate a document (electronic or otherwise) “where the circumstances support a finding that the writing is genuine.”
On Tuesday, May 15, the Supreme Court of Pennsylvania agreed to hear an appeal concerning the admissibility of “unauthenticated” text messages. The case is Commonwealth v. Koch , and it could be a landmark decision. The Supreme Court of PA will review the Superior Court’s decision that certain drug-related text messages were inadmissible because there was no evidence that the Defendant had made those texts on her phone, which police had found.
This raising an interesting question: if the prosecution can show that the phone did, in fact, belong to the defendant and that the texts were made, shouldn’t it be for the jury to decide whether those facts alone create an inference that the defendant had made those texts? It may not be a strong inference, but one could exist. Even if it were not her phone, an inference can still be drawn if, say, a text took place on someone else’s phone that was found in close physical proximity to her (and no one else) at the time of the texts.
A jury could easily sort out something common place like, who made the text? It’s not like asking a jury to speculate about the cause of a nuclear disaster. Juries are great with basic fact scenarios. The jury system has an unfairly bad reputation in part because the odd and unreasonable verdicts get the most attention, but the hundreds of fair verdicts every week across the USA go unnoticed.
2022 UPDATE
The Rules of Evidence in Pennsylvania were updated in regard to the authentication of electronic communications:
Rule 901
225 Pa. Code § 901
Thus, proof of “ownership” “possession” or control” may be enough to prove who made a text. In other words, it may now be sufficient to authenticate a text, for example, by simply obtaining the phone records to show ownership of a phone which, in turn, can authenticate that person’s text messages from the same phone.
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