eDiscovery Case Law: Another Case with Inadmissible Text Messages
May 18, 2012
Yesterday, we discussed a case – Commonwealth v. Koch, No. 1669-MDA-2010, 2011 Pa. Super. LEXIS 2716 (Sept. 16, 2011) – where a Pennsylvania Superior Court ruled text messages inadmissible, declaring that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender's identity. That case is now being appealed to the state Supreme Court. Today, we have another case – Rodriguez v. Nevada, No. 56413, 2012 WL 1136437 (Nev. Apr. 5, 2012) – where text messages were ruled inadmissible.
In this case, the Nevada Supreme Court found that a lower court abused its discretion in admitting text messages because the State failed to provide sufficient evidence corroborating the identity of the sender. The defendant, Kevin Rodriguez, was found guilty in trial court of multiple counts associated with an attack of a woman in her home. On appeal, he argued that the trial court erred in overruling an objection to the admission of 12 text messages because the state failed to authenticate the messages and the messages constituted inadmissible hearsay.
Citing Commonwealth v. Koch, among other cases, the Nevada Supreme Court found that it is necessary that the identity of the author of the text message be established through corroborating evidence presented. In this case, the state did establish that the victim’s cell phone was stolen during the attack, and that the defendant was in possession of the cell phone prior to being arrested.
The court noted that “Text messages offer new analytical challenges when courts consider their admissibility. However, those challenges do not require a deviation from basic evidentiary rules applied when determining authentication and hearsay.” Further noting that “establishing the identity of the author of a text message through the use of corroborating evidence is critical to satisfying the authentication requirement for admissibility", the court concluded that when there has been an objection to admissibility of a text message, “the proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission”.
Since the state did not offer any corroborating evidence that the defendant authored 10 of the 12 text messages, those messages were ruled as inadmissible. The other two messages were deemed admissible and not considered to be hearsay because in those instances, the state was able to present bus surveillance video of the defendant participating in using the phone at the time those two messages were sent. Despite the erroneous admission of the other 10 text messages, however, the Nevada Supreme Court held that the error was harmless as there was a considerable amount of other evidence pointing to the guilt of the defendant.
So, what do you think? Should text messages be ruled inadmissible without corroborating evidence? Will cases like this significantly reduce the use of text messages as evidence in litigation? Please share any comments you might have or if you’d like to know more about a particular topic.
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