Instant Messages - Evidentiary Issues

This post is about the issues that can arise when someone wants to used instant messages as evidence. There are quite a few reported cases that deal directly or tangentially with the admissibility of instant messages under the federal or state rules of evidence.

This post is about two cases in which that issue came up; I’m using them because both seem both fairly representative of the issues and both courts addressed the issue in some detail.

The first, and most recent, case is U.S. v. Minder, 2009 WL 981102 (U.S. Court of Appeals for the Fourth Circuit 2009). Joseph Minder was convicted of mail fraud, securities fraud and possessing and uttering a forged endorsement in violation of federal law. This is a summary of what led to Minder’s indictment:

In 1998, William McNulty introduced Minder to a financial investment scheme promising unusually high rates of return, which purportedly involved overseas accounts managed by `Donald,’ a multi-millionaire European trader of financial investments. The investment scheme was classically fraudulent; it used money received from later victims to pay earlier victims. McNulty and Minder were indicted on October 31, 2006 for engaging in a common scheme to defraud investors using interstate mail. At Minder's trial, McNulty, who had pled guilty to the charges filed against him, exercised his Fifth Amendment privilege against self-incrimination.

During Minder's direct testimony, Minder's counsel attempted to introduce into evidence as an exception to the hearsay rule . . . `instant messages’ from McNulty to Minder. These messages indicated `Donald’ was a fictitious character. Counsel argued that the messages constituted evidence that Minder, until that revelation, believed the investment program was legitimate rather than fraudulent. Following the Government's objection, the district court excluded the evidence as hearsay.

U.S. v. Minder, supra. Minder seems to have conceded that the instant messages were hearsay. As I’ve noted, hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Federal Rules of Evidence - Rule 801(c).

As I explained in an earlier post, hearsay is excluded – subject to certain exceptions – because the person against whom it’s offered cannot cross-examine the person who made the statement. The premise is that the lack of cross-examination undermines the fairness of the proceeding.

Minder argued that the “Donald” instant messages should be admitted under either of two exceptions to the hearsay rule. At trial, he argued they should be admitted under Federal Rules of Evidence – Rule 803(3), which says a hearsay statement is not excluded by the rule barring hearsay it if is a statement of

the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

The district court refused to admit the statements under Rule 803(3):

After the court clarified that Minder's trial counsel intended to offer McNulty's statements `for [the] state of mind with which [Minder] acted during the events,’ the court ruled that it would not allow the evidence `for those conditions.’ . . . Though the instant messages are relevant because they demonstrate that Minder lacked the necessary intent, or requisite `state of mind during the time of the alleged [fraud],’ that reason alone does not make McNulty's out-of-court statements admissible.

U.S. v. Minder, supra.

On appeal, Minder conceded that the instant messages were not admissible under Rule 803(3), but claimed they should have been admitted under a different Federal Rule of Evidence: Rule 804(b)(3). That rule says the following “are not excluded by the hearsay rule" even if the declarant isn't available to testify at trial:

A statement which was at the time of its making so . . . tended to subject the declarant to civil or criminal liability, . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Rule 804(b)(3). The Court of Appeals noted that one seeking to introduce a statement under this rule “has a formidable burden of establishing” that the statement is actually adverse to the speaker’s interest and that corroborating circumstances “clearly indicate” its trustworthiness. It held that Minder had failed “to establish the requisite elements to this hearsay conclusion” and affirmed his conviction. U.S. v. Minder, supra.

The other case is Turman v. Commonwealth, 2007 WL 2765796 (Court of Appeals of Virginia 2007). Turman was charged with rape and misdemeanor sexual assault:

[Turman] and . . . S.J., had been best of friends for approximately five years. During that time, S.J. was involved romantically with another man. After S.J. broke the relationship off with her boyfriend, she would often turn to [Turman] for advice and guidance. . . .

On October 5, 2002, S.J. attended a nightclub in Washington, D.C. While there, she received a cell phone call from [Turman], who wanted to know when S.J. would be arriving home at her apartment. . . .When S.J. arrived at 3:00 a.m., [Turman] was waiting for her in the parking lot. Uninvited, he followed her inside. . . .

Turman v. Commonwalth, supra. According to S.J., despite her refusing and resisting, Turman raped her and then left her apartment. She called the police, who stopped Turman 15 minutes after he had left the apartment. Turman v. Commonwealth, supra. He was arrested and charged with rape and misdemeanor sexual assault.

A few months after the incident, S.J. received an instant message from `Myron109.’ S.J. testified that the message stated, `I just wanted to apologize.’ When she asked him why he did it, `Myron109’ responded that he was on ecstasy, that he was very sorry for what he had done, and very sorry for humiliating her. [Turman] had contacted S.J. in the past using the screen name `Myron109.’

Testifying on his own behalf, [Turman] admitted having a sexual relationship with S.J. on October 5, 2002, but stated that the encounter was consensual. He also testified that his AOL instant messaging screen name is `Myron109’ but he did not send that particular message to S.J. [Turman] said that two friends and his estranged wife also have access to his AOL account.

The trial court ruled that the content of the message from `Myron109’ was `case specific”’to the incident and admitted it. . .

Turman v. Commonwealth, supra. Turman was convicted and appealed, arguing that S.J.'s testimony as to the content of the instant message was inadmissible because the prosecution did not “sufficiently identify the sender, the content of the message is hearsay, and its admission violates the best evidence rule.” The Court of Appeals held that the prosecution proved the instant message came from Turman:

[He] admitted his screen name was `Myron109.’ [He] testified others had access to his AOL `account,’ yet he never indicated anyone had access to his personal screen name. . . . [Turman’s] admission to his use of ecstasy is consistent with his unexpected . . . behavior on the night of the assault. [Turman] . . . recognized in the instant message that his personality was altered because of the drug. . . . .Thus, [his] statement that he was `on ecstasy when he did it’ sufficiently identifies him as having knowledge of the rape and as the sender of the message.

Turman v. Commonwealth, supra.

The Court of Appeals also held that though the instant message was hearsay, it was admissible under the exception to the hearsay rule that allows “`[s]tatements made freely by [the accused] which tended to show guilt, when considered other evidence” to be admitted as what the Federal Rules of Evidence call an admission of a party-opponent. Federal Rules of Evidence – Rule 801(d)(2). The court found that the evidence proved Turman made the statement and that, considered with other evidence, it tended to show his guilt of the crimes with which he was charged. Turman v. Commonwealth, supra.

Finally, Turman said S.J.’s testimony as to the content of the instant message was not the best evidence as to its existence: “Because an instant message is a `writing’ as contemplated by the best evidence rule, the Commonwealth has not sufficiently explained why a printout of the message is unavailable.” Turman v. Commonwealth, supra.

As I explained in an earlier post, the best evidence rule dates back centuries, when documents were written by hand. The premise of the best evidence rule, as it originally developed, was that the original of a document was the “best evidence” of its contents because it was more likely to be accurate than a hand-written copy. The rule is incorporated into Rule 1002 of the Federal Rules of Evidence: “To prove the content of a writing, . . . the original writing . . . is required, except as otherwise provided in these rules or by Act of Congress.” It seems to be a common law rule in Virginia.

The Court of Appeals “assume[d] without deciding” that the messages were “writings” within the scope of the rule. It explained that when the contents of a writing are to be proved, the writing must be produced “`or its absence sufficiently accounted for before other evidence of its contents can be admitted.’” Turman v. Commonwealth, supra.

S.J. . . . testified that it never occurred to her to print or save the messages and that, even if it had, she did not know how to perform either task. Any potential written, or saved, statement vanished upon S.J. turning off her computer. Thus, it is clear that an original printed message was unavailable, and the trial court properly allowed S.J. to testify as to the content of the messages that appeared on her computer screen.

Turman v. Commonwealth, supra. The Court of Appeals affirmed Turman’s convictions, but that was not the end of the matter. A year later the Virginia Supreme Court reversed the conviction because of an erroneous instruction given by the trial judge.