Wednesday, February 24, 2010

Text Messages: Authentication and Hearsay Issues

As Wikipedia notes, the law of evidence “governs the use of testimony (e.g., oral or written statements, such as an affidavit) and exhibits and (e.g., physical objects) or other documentary material which is admissible (i.e., allowed to be considered by the (trier of fact, such as jury) in a judicial . . . proceeding.” Wikipedia also outlines the policies that underlie the law of evidence and some of the major principles it encompasses.

This post is about a case in which two of those principles were at issue: the requirement that evidence be authenticated in order to be admissible; and the default prohibition on the use of hearsay evidence.

As I explained in an earlier post, authentication means the proponent of the evidence (the party asking the court to admit it) has to show the evidence is what it purports to be. Each U.S. state and the federal judicial system has its own rules of evidence, which are quite similar. Rule 901(a) of the Federal Rules of Evidence says the “requirement of authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims” it to be. Rule 901(b) gives some examples of how evidence can be authenticated: testimony by someone who can identify it; an expert’s comparing it with “specimens which have been authenticated:’ distinctive characteristics; public records; or any other method prescribed by law. Every state has a similar rule that governs authentication in court proceedings in that state.

And as I explained in another post, every U.S. state and the federal system bans the use of hearsay evidence unless it falls within one of several exceptions to the rule barring its use. Rule 801(c) of the Federal Rules of Evidence defines hearsay as “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.” Rule 802 of the Federal Rules of Evidence says hearsay “is not admissible unless provided by these rules”. Every U.S. state has a similar provision. As I explained in my prior post on hearsay, it’s excluded because to allow the use of second-hand evidence – John repeating what Jane allegedly told him – opens up all kinds of possibilities for unfairness and error. The hearsay rules are intended to guard against those possibilities.

That brings us to State v. Thompson, 2010 WL 93233 (Supreme Court of North Dakota 2010). Jennifer Thompson was convicted of “simple assault upon a family or household member” in violation of North Dakota Century Code § 12.1-17-01. Section 12.1-17-01(1) says someone is “guilty of an offense if he/she “[w]illfully causes bodily injury to another human being”. Section 12.1-17-01(2)(b) makes the offense a class B misdemeanor if the victim is a member of the perpetrator’s family or household. Here, according to one of the briefs filed in the case, is how Jennifer came to be charged with violating § 12.1-17-01:

On October 31, 2008, Jennifer . . . and Wesley Thompson were married and had three children. On the morning of October 31, [Jennifer] began sending text messages to [Wesley] asking for money and asking him to pick up the children and bring them to school. A number of the text[s] . . . contained threatening statements directed at [him]. When [he] arrived at their residence in Grafton, the children and [Jennifer] got in his vehicle. After driving the children to school, [Wesley] drove back to their residence to drop [Jennifer] off, so he could go to work. [Jennifer] refused to get out . . .until he gave her $150.00. [He] offered to take her shopping, but [she] refused, stating she wanted cash. After approximately one hour, [Jennifer] raised her demand to $250.00, and . . . [Wesley] drove to the police station for assistance. [Jennifer] still refused to get out of the vehicle and [Wesley] requested assistance from Sheriff Lauren Wild. Sheriff Wild was successful in getting [Jennifer] to leave the vehicle and [Wesley] went to work.

[Wesley] stopped answering [Jennifer]'s phone calls, but later transferred $60.00 to [her] account. After work, [he] called [Jennifer] and they took the children trick or treating. At . . . 9:30-10:00 p.m., they returned to the house and [Jennifer] wanted to go out for the . . . evening. [Wesley] brought her to Polly's Lounge and gave her $20.00. [He] returned home to watch the children and at approximately 10:30 p.m., [Jennifer] began sending several text messages to [Wesley] asking for money. [He] responded that he was not going to bring her any more money. At approximately 11:00 p.m., [Jennifer] arrived at the residence, confronted [Wesley] and demanded he give her more money. [Wesley] refused to go and get her more money. [They]] continued to argue regarding money and [Wesley] told [Jennifer] he was leaving. [He] went to leave and [Jennifer] began hitting him in the face and the back. [Wesley] ran towards the bathroom and called 911.

Appellee Brief, State v. Thompson, 2009 WL 3308769 (transcript references omitted). (This statement of facts comes from one side’s brief, so it may or may not be a little biased.) After Wesley called 911, police officers showed up, saw his eye was injured, asked Jennifer how that happened and she said “she hit him.” Appellee Brief, supra. The officers arrested her for violating § 12.1-17-01, and she eventually went to trial on the charge; a jury convicted her and she appealed. State v. Thompson, supra.

On appeal, Jennifer claimed the trial court shouldn’t have admitted “testimony about text messages sent from her cell phone” to Wesley’s phone because (i) the evidence wasn’t properly authenticated and/or (ii) it was inadmissible hearsay. State v. Thompson, supra.

At trial, Wesley testified about texts Jennifer sent him on October 31: He said he knew they were from her because they said “`Fr: Jen” at the beginning, which was the way he stored her phone number in his cell phone, and the end of the message included her phone number and her signature, `cuzImJenIcan,’ which he was familiar with.” State v. Thompson, supra. When Jennifer took the stand, she claimed Wesley “may have used her phone to send” one particular message – which “included profane and threatening language” – to himself. State v. Thompson, supra. She also argued (on appeal) that

e-mails or text messages are inherently unreliable because of their relative anonymity and can rarely be connected, to a certainty, with a specific author. . . . [S]omeone with the correct password or access to the cellular phone can send a message ostensibly from that person. Further, . . . . text messages. . . are more unreliable due to the . . . recipient not being able to hear a voice or observe handwriting. . . . Ms. Thompson argues that . . . this Court should review the authenticity and admissibility at a higher standard then voice recordings and writing samples.

Appellant Brief, State v. Thompson, 2009 WL 3308770.

When Jennifer challenged the authentication of the “profane and threatening” text at trial, the prosecution introduced a picture of it; when Jennifer claimed the picture hadn’t been authenticated, the prosecutor asked her for her cell phone number and her “signature for text messages, which were both depicted on the picture of the text” in question. The trial judge admitted the picture of the message into evidence, saying it was authenticated by Jennifer’s testimony and by what Wesley had said earlier. State v. Thompson, supra.

In ruling on Jennifer’s claim that the texts and the picture of the particular text shouldn’t have been admitted, the Supreme Court noted that authentication was within the trial court’s discretion, so it would not reverse the trial judge if his decision was reasonable. The court explained that while it had not “previously considered . . . the foundational requirements for the admissibility of text messages, other courts have held that similar electronic messages were authenticated by circumstantial evidence establishing the evidence was what the proponent claimed it to be.” State v. Thompson, supra. The North Dakota Supreme Court also noted that it wasn’t going to create a heightened standard of review for texts and other electronic messages. It cited a Pennsylvania court’s opinion, in which that court said that text, emails and other electronic messages “can be properly authenticated” under existing rules of law. State v. Thompson, supra (quoting In re F.P., 878 A.2d 91 (Superior Court of Pennsylvania 2005).

The Court then held that the trial judge heard enough evidence from Wesley, “including the circumstances of that day and his knowledge of [Jennifer’s] cell phone number and signature . . . to authenticate [his] testimony about the text messages he received on October 31.” State v. Thompson, supra. It also rejected Jennifer’s claim that the picture of the “profane and threatening “ text was not properly authenticated; it noted that she never claimed the picture “did not correctly and accurately depict the text message” and it found that Jennifer’s and Wesley’s testimony established that Jennifer’s cell phone number and signature were included in the message. State v. Thompson, supra.

Then there was the hearsay issue: When Jennifer raised the issue at trial, the judge held that the texts weren’t hearsay. Appellant Brief, supra. The North Dakota Rules of Evidence bar the use of hearsay but they, like the Federal Rules of Evidence, specify that certain statements do not constitute hearsay. Under Rule 801(d)(2)(i) of the North Dakota Rules of Evidence, a statement that “is offered against a party and is . . . the party’s own statement” doesn’t constitute hearsay. The trial judge held that Jennifer’s texts fell within this rule, i.e., it constituted what is known as a “party admission.” On appeal, Jennifer claimed the trial judge erred because a threat to do something in the future isn’t “an admission of past wrongdoing.” State v. Sutphin, 195 W. Va. 1995, 466 S.E.2d 402 (Supreme Court of West Virginia 1995). I found a few decisions from other states that address this issue; a West Virginia court held that it doesn’t matter, i.e., that a “threat to do something in the future” can constitute a party admission under rules like 801(d)(2)(i) of the North Dakota Rules of Evidence. State v. Sutphin, supra. The North Dakota Supreme Court seems to have reached the same conclusion, because it held that the trial judge correctly rejected Jennifer’s hearsay argument. State v. Thompson, supra.

Isn’t it amazing that a class B misdemeanor could generate all these issues?


Anonymous said...

"The Court then held that the trial judge heard enough evidence from Wesley, “including the circumstances of that day and his knowledge of [Jennifer’s] cell phone number and signature . . . to authenticate [his] testimony about the text messages he received on October 31."

This is terrible. This is patently untrue. Text messages are easily forged. A simple look at the information stored on the receivers phone is not enough to authenticate a text message.

Hopefully this is an aberration and other judges and defense lawyers know this.

Anonymous said...

I was about to say that ;)
However most people don't know that in general, let alone the technically incompetent judges sitting on the bench...

Sujit said...

Really its a very good case study for all. I liked it and will continue to read this type case studies as I am also from your field. So thanks again.
I also write blog on cyber crime prevention awarness
and there you will get some live case studies on cyber crime and electronic crime and I hope that will also help you.
Again thanks a lot for this case study.

Loki said...

About the most effective way currently to validate a text message is to get carrier logs. Even then, with ASN5/1 being broken, it is possible to either man in the middle or plain session impersonate most GSM cellphones, so even the carrier would think it came from a given cell phone.

PHV said...

It's impossible for courts to require certainty. I'm not sure exactly how the standards for authentication (from paragraph 3) compare to the more familiar standards of beyond a reasonable doubt, and preponderance of evidence, but more like the latter than the former. The opposite side is free to bring testimony to impeach the provenance of a document.

In this case, to argue that the text message is fraudulent, you would have to offer some alternate explanation for its existence, including some suggestion of who had the knowledge and opportunity to create a forgery.