Text messages sent from mobile phones have become a common method of communication in recent years, but as with most new technologies, our justice system has not fully caught up. Courts are still considering various questions regarding when prosecutors may use text messages as evidence of guilt in a criminal case. This includes questions of authentication, such as whether the state must prove that a defendant actually wrote a specific text message, or merely that a witness received the text and believed it to be from the defendant. Courts in Texas and other states have reached different conclusions on this issue in recent months.
The Texas Court of Criminal Appeals held that, once the state has established that the text messages exist on a witness’ phone, it is up to the jury to assess whether the messages are authentic. Butler v. State, No. PD-0456-14, slip op. (Tex. Crim. App., Apr. 22, 2015). This case involved a kidnapping charge, and the state called the kidnapping victim to testify about text messages received from the defendant. The Court of Appeals held that the state failed to authenticate text messages allegedly sent by the defendant and reversed the conviction.
The Court of Criminal Appeals reinstated the conviction, noting that authentication generally only requires “evidence sufficient to support a finding that the item is what the proponent claims it is.” Id. at 7, quoting Tex. R. Evid. 901(a). The witness’ testimony, the court held, was sufficient, and the rest was within the discretion of a reasonable jury.
The Pennsylvania Supreme Court recently ruled that text messages were not admissible in a drug distribution case, but it stopped short of identifying any clear rules on the matter. Comm. v. Koch, No. 45 MAP 2012, order (Pa., Dec. 30, 2014). Prosecutors used text messages found on the defendant’s phone, which reportedly discussed drug deals, as evidence of the defendant’s guilt in a drug distribution case. The defendant appealed partly on the grounds that they failed to prove that she wrote the texts.
The Pennsylvania court’s ruling did not establish any definite rules about the authentication or admissibility of text messages. The justices were split 3-3, with both concurring and dissenting opinions, which meant that the lower court ruling was affirmed. The court left questions open regarding when the state must prove who wrote a text message, and when that question may be left to the jury. It is interesting to note that this decision involved the failure to prove that the defendant wrote text messages found on her own phone, while the Texas case allowed the jury to decide about text messages on someone else’s phone.
A few other recent appellate cases in Texas have addressed this issue in one form or another. A defendant challenged the sufficiency of the evidence, which included text messages that allegedly referred to drug deals, but not the admissibility of the text messages themselves, in Bejar v. State, No. 14-12-00888-CR, mem. op. (Tex. App.–Houston [14th Dist.], Oct. 31, 2013). A court reversed and remanded a drug possession conviction after finding that text messages used as evidence were obtained in a warrantless search of the defendant’s cell phone in Oliver v. State, No. 14-13-00957-CR, mem. op. (Tex. App.–Houston [14th Dist.], Jan. 22, 2015). This decision involved Fourth Amendment questions based on the U.S. Supreme Court’s decision in Riley v. California, 573 U.S. ___ (2014), rather than any question related to hearsay or authentication.
These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.
Criminal defense attorney Michael J. Brown has advocated for the rights of defendants in west Texas criminal cases for over 20 years. To schedule a confidential consultation with a member of our team, contact us today online or at (432) 687-5157.
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