Harassment, Facebook and Repeated Communications

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After she was convicted of “the misdemeanor offense of harassment and sentenced to 180 days in jail probated for two years and a $500 fine,” Debra Hernandez appealed.  Hernandez v. State, 2013 WL 3717766 (Texas Court of Appeals – Dallas 2013). The conviction was under Texas Penal Code § 42.07; we will get back to it later.

The opinion notes that,

[p]rior to the offense, [Hernandez] was in a relationship with Christopher Guerrero. Guerrero left [her] for Gayle Kent while [she] was pregnant with his child. [Hernandez] admitted she harbored a great deal of animosity towards Guerrero and directed this animosity towards Kent.

Hernandez v. State, supra.

It also noted, prior to describing the facts in the case, notes that after Hernandez

threatened Kent with a series of profane electronic messages and annoying telephone calls, she was charged by information with harassment. The information alleged that [Hernandez], with the intent to harass, annoy, alarm, abuse, torment, and embarrass Kent, (1) caused the telephone of Kent to ring repeatedly; (2) made repeated telephone calls anonymously; (3) knowingly permitted a telephone under her control to be used by another to commit an offense; (4) threatened to inflict bodily injury on Kent by electronic communication in a manner reasonably likely to alarm Kent; and (5) sent repeated electronic communications in a manner reasonably likely to harass, annoy, torment, or offend another.

Hernandez v. State, supra.

This, according to the opinion, is what the evidence presented at trial showed:

Kent testified that over a two month period, [Hernandez] sent profane and threatening electronic messages to her on Facebook. [Hernandez] referred to Kent as a `hoe,’ and challenged Kent to `say it to [her] muther f* * * face.’ She also told Kent that `[she] don't play no f* * * games.’ 

Kent testified that the messages made her feel annoyed and threatened. [Hernandez] also published a public statement about Kent on her Facebook page that Kent described as making her feel very embarrassed, and sent a message to Guerrero, stating `[h]andle that bitch or I will. And you know I will. I'm not one to be messed with. . . .’

Kent sent [Hernandez] a message asking that she stop contacting her. [Hernandez] responded, `[y]ou know what u got urself in[to].’ Kent again requested that [Hernandez] cease contacting her and then blocked [Hernandez’s] ability to contact her on Facebook. After doing so, Kent began receiving email communications from pornographic and dating websites that she had not signed up for. Kent also began receiving anonymous calls.

On one occasion, while Kent was in class, [Hernandez] telephoned eleven times in ten minutes. The calls were such a nuisance Kent was asked to leave class. Kent answered the phone on the eleventh call and told [Hernandez] if she wanted to speak with Guerrero, she would need to call back after 5:30. Two minutes later, [Hernandez] sent Kent six text messages referring to her as a bitch and a slut and threatening to assault her. Kent stated that she was afraid[Hernandez] would try to hurt her.

[Hernandez] admitted she sent messages to Kent but claimed Kent had initiated the exchange by electronic mail. [Hernandez] introduced copies of the alleged emails but could not produce them in their original form because she cancelled the account where she had allegedly received them. 

On cross-examination, [she] admitted that portions of the text within the emails were very similar to the Facebook messages she sent. Kent testified that she had never seen the emails and did not send them.

Hernandez v. State, supra.

After hearing all the evidence presented at trial, the judge found Hernandez guilty.  Hernandez v. State, supra.

In so doing, the judge noted that he found it `a little incongruent that [Hernandez and Kent] would communicate for several months by email and then all of a sudden switch over to communicating by Facebook.’ 

The trial judge also stated, `And especially the blast that went out for the whole world to see would obviously be embarrassing, seem somewhat annoying, tormenting, et cetera. And there seems to be uncontroverted evidence that these e-mails were sent and that they had that effect. And on that basis, I find the Defendant guilty.’

Hernandez v. State, supra.

Hernandez only made one argument on appeal, i.e., that the evidence was

insufficient to support her conviction. Specifically, [Hernandez] contends that three Facebook messages and one Facebook post over a three month period is insufficient to establish a repeated electronic communication for purposes of the harassment statute.

Hernandez v. State, supra.

The Court of Appeals began its analysis of Hernandez’s argument by noting that

[w]e review the sufficiency of the evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. 

In conducting a sufficiency review, we defer to the jury's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. . . . This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.  Jackson v. Virginia, supra. When the record supports conflicting inferences, we presume the factfinder resolved the conflicts in favor of the prosecution and defer to that determination. Jackson v. Virginia, supra.

Hernandez v. State, supra.

The court then explained that Hernandez was charged by information with violating the

harassment statute under four different theories: threatening Kent with bodily injury through electronic communications, causing Kent's telephone to ring repeatedly or making anonymous telephonic communications repeatedly, permitting another to use one's telephone to commit harassment, and repeated electronic communications.

Hernandez v. State, supra.  These charges correspond, respectively, to Texas Penal Code § 42.07(a)(2), (4), (6) & (7).  Hernandez v. State, supra.

The Court of Appeals then pointed out that “[o]nly three of these sections are at issue on appeal: Section (a)(2), threatening bodily injury by electronic communication, Section (a)(4), causing the telephone of another to ring repeatedly, and Section (a)(7), sending repeated electronic communications.”  Hernandez v. State, supra.  As to the § 42.07(a)(6) charge, the prosecution conceded “that no evidence was introduced to support a conviction” under that provision, i.e., “permitting another to use one's telephone to commit harassment”.  Hernandez v. State, supra. 

On appeal, Hernandez argued that the trial judge found her guilty under

§ 7 (repeated electronic communication) and acquitted her under §§ 2 (threatening electronic communication) and 4 (causing telephone to ring repeatedly). [Her] argument is premised on the comments preceding the trial court's pronouncement of a general verdict of guilt. According to appellant, the judge made no findings related to the contested testimony concerning the phone calls and text messages.

Hernandez v. State, supra. 

The Court of Appeals noted that the judge’s comments at trial “began with a reference to the emails [Hernandez] introduced into evidence.”  Hernandez v. State, supra.  He said:

`Well, first I find it a little incongruent that they would be communicating for all these months by e-mail and then all of a sudden switch over to communicating through the Facebook account, or whatever it is. But even if these e-mails are true, I don't have to decide whether they are or they aren't.' 

`The statute says that it doesn't -- as opposed to the stalking statute, where there has to actually be a threat of bodily injury, under the harassment statute, which surprisingly was found Constitutional by the Court of Criminal Appeals within the last year or so, that the statute's saying that if it's done for purposes to embarrass, torment, annoy, et cetera, that under the harassment standards that that is sufficient.'

`And especially the blast that went out for the whole world to see would obviously be embarrassing, seem somewhat annoying, tormenting, et cetera. And there seems to be uncontroverted evidence that these e-mails were sent and that they had that effect. And on that basis, I find the Defendant guilty.’

Hernandez v. State, supra. 

Based on these comments (and, I am assuming, the conduct of the trial), the Court of Appeals found that  “the judge pronounced a general verdict of guilt for the crime of harassment”, i.e., he did not make specific findings as to Hernandez’s guilt on each of the distinct charge against her.  Hernandez v. State, supra.  As the court noted, the

written judgment also does not specify that [Hernandez] was found guilty pursuant to a particular subsection of the harassment statute. Indeed, the judgment does not contain a statutory reference at all.

Hernandez v. State, supra. 

The Court of Appeals then found that Hernandez’s argument on appeal was

directed only to the sufficiency of the evidence to support a conviction under section (a)(7). In particular, [she] complains that one public post and three Facebook messages over the scope of three months do not constitute a `repeated communication’ within the meaning of the statute as interpreted by the Texas Supreme Court.

Hernandez v. State, supra.  (Texas Penal Code § 42.07(a)(7) makes it a crime to send “repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.”)

The Court of Appeals found, however, that it did not need to

determine whether the evidence was sufficient under section (a)(7) if the evidence is sufficient to support a conviction under any of the theories alleged. See Rabbani v. State, 847 S.W.2d 555 (Texas Court of Criminal Appeals 1992). When the trier of fact returns a general verdict and the evidence is sufficient to support a finding under any of the theories submitted, the verdict will be upheld. 

Hernandez v. State, supra. 

It explained that, in this case, there was

sufficient evidence in the record to support a conviction under section (a)(4). Section (a)(4) of the statute provides:

(a) A person commits an offense, if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he . . .

(4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

Texas Penal Code § 42.07(a)(4).

Kent testified that she was in class when [Hernandez] called eleven times in ten minutes. When Kent answered the phone and told [her] she would have to call later if she wanted to speak to Guerrero, [Hernandez] immediately sent six text messages. The messages referred to Kent as a bitch and a slut and included a threat of assault. Kent testified that she was afraid [Hernandez] would try to harm her, and these phone calls, like the messages on Facebook, made her feel annoyed and embarrassed.

Hernandez v. State, supra. 

The Court of Appeals therefore held that

[a]lthough [Hernandez] denied making the phone calls and claimed she did not intend to harass Kent, the judge was free to assess her credibility and accept or reject her testimony. . . . Therefore, . . . we conclude the evidence was sufficient to support [her] conviction for harassment. 

Because we have found the evidence sufficient under section (a)(4), we need not consider whether the evidence was also sufficient under any of the alternative theories under which [Hernandez] was charged. . . . Having resolved [her] sole issue against her, we affirm the trial court's judgment.

Hernandez v. State, supra. 

So, Hernandez lost, and unless the Texas Supreme Court is asked to, and agrees to, hear the case, this will be the end of the matter.

The Text Message, False Light and the Pseudonym

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This post examines an opinion a federal District Court Judge in Kansas recently issued in a civil suit.  Patton v. Entercom Kansas City LLC, 2013 WL 3524157 (U.S. District Court for the District of Kansas 2013).  The judge begins by noting that

[t]his matter comes before the Court on plaintiff's  Motion For Leave To File Complaint And Proceed Using Initials Or Pseudonym, Or, In The Alternative, To Proceed Under Seal (Doc. # 4) filed April 19, 2013. Plaintiff seeks leave to proceed in this case identified only by her initials, `A.P.,’ or  as`Jane Doe.’  Alternatively, she moves that the case proceed under seal. Defendant Entercom Kansas City, LLC opposes the motion.

Patton v. Entercom Kansas City LLC, supra.

The reason for the request comes from the nature of the lawsuit and, apparently, from the facts at issue:

Plaintiff represents that on April 12, 2012, two morning radio hosts publicly cast her in a false light when they read on-air a text message from a listener that identified her, by name, as a `local porn star’ and graduate of Olathe South High School. Complaint (Doc. # 1), filed April 19, 2013, ¶¶ 4, 17, 28. These comments were broadcast on KRBZ–FM 96.5 The Buzz, which is operated by Entercom. Id. ¶ 2. The station uploaded a recording to its website, but later removed it at the request of plaintiff's father. Id. ¶¶ 25–26.

Plaintiff identifies herself as a `young law student’ with a `sterling reputation . . . who highly values her reputation as a citizen of the community.’ Memorandum In Support Of Motion For Leave To File Complaint And Proceed Using Initials Or Pseudonym, Or, In The Alternative, To Proceed Under Seal (Doc. # 5), filed April 19, 2013, at 3.

She states that she is proud of her academic and extracurricular accomplishments, and she values her reputation as a citizen and her character as a future lawyer. The incident allegedly caused her to become `distressed and deeply disturbed.’ She ultimately sought treatment and medication for `sleeplessness, agitation, and anxiety,’ id. ¶¶ 30, 32, and she continues to suffer these symptoms and take medication. Doc. # 5 at 4.

Patton v. Entercom Kansas City LLC, supra. (If you are wondering why this lawsuit, which does not seem to involve any claims implicating federal law, as such, is in federal court, my guess is that it was filed in court under a federal district court's diversity jurisdiction. As Wikipedia explains, federal courts can, when certain conditions are met, hear cases the claims in which involve state law if the parties are "diverse," i.e., are from different U.S. states.)

So, Patton is suing Entercom Kansas City LLC on a civil, tort law claim of false light.  As Wikipedia explains, “false light” refers to “a tort concerning privacy that is similar to the tort of defamation.” As Corpus Juris Secundum notes, the

elements of a false light invasion of privacy are a publication about an individual which places him or her in a false light before the public, which is highly offensive to a reasonable person, and which the actor either knew was false, or acted with reckless disregard as to its falsity. The false light need not be defamatory, but it must be such as to be offensive or objectionable to a reasonable person. Statements cannot cast a person in a false light unless they are of and concerning that individual.

77 Corpus Juris Secundum § 13.  As it also notes, false light requires “publicity”, which means that the statement or statements

must not merely be published to a third person, but communicated to the public at large or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.

77 Corpus Juris Secundum § 13.  To prevail, the plaintiff must also  prove he/she was “damaged” by the false light statement(s).  77 Corpus Juris Secundum § 13.  You can read more about false light here.  The allegations noted above seem to go to that issue, aside from any other “damage” that might have resulted from the publication of the text message at issue.

The point here, though, is not liability, as such.  It is whether Patton will have to pursue the lawsuit as a public proceeding under her own name or employ a pseudonym or have the court proceedings sealed. Before we examine how the federal judge in this case rules on Patton’s requests, I should point something out:  As I explained in a law review article I published several years ago, bringing a suit for defamation or false light can be counterproductive, as a matter of fact because the litigation can simply call more attention to the allegations at issue. 

If the litigation is complex and prolonged, it can have the almost adverse effect of giving more and more publicity to the allegations which, in turn, can mean that people who do not pay a great deal of attention to the case (read, most people) will tend to remember the defamatory or false light allegations and not remember that the plaintiff may very well have prevailed, i.e., the court may have found that the content was defamatory and/or false.  So, even if a plaintiff wins, it can be a bit of a Pyrrhic victory.  My guess, and it is just that, is that Patton is trying to minimize and/or avoid that effect by bringing the suit under a pseudonym or having the proceedings sealed, to prevent reporters and others from gaining access to them.

The district court judge began her ruling on Patton’s requests by noting that

[n]o federal rule or statute allows a plaintiff to unilaterally use a pseudonym in court filings to conceal his or her real name. Litigants using the courts must ordinarily accede to the inherently public nature of the proceedings. Femedeer v. Haun, 227 F.3d 1244 (U.S. Court of Appeals for the 10th Circuit 2000). 

Indeed, proceeding anonymously is contrary to the spirit of Rules 10(a) and 17(a) of the Federal Rules of Civil Procedure, which require respectively that pleadings contain the parties' names and that an action be prosecuted in the name of the real party in interest. . . . In exceptional circumstances, however, courts may permit a plaintiff to proceed under a pseudonym when highly sensitive and important privacy interests are at stake. M.M. v. Zavaras, 139 F.3d 798 (U.S. Court of Appeals for the 10th Circuit 1998).

Patton v. Entercom Kansas City LLC, supra.

She then explained that a federal district court

exercises `informed discretion’ when deciding whether to allow a plaintiff to proceed under the cloak of anonymity. M.M. v. Zavaras, supra.  In particular, the Court weighs plaintiff's interest in privacy against the public's interest in access to open court proceedings. M.M. v. Zavaras, supra. In the rare instance in which a court permits the practice, the case usually involves abortion, birth control or welfare prosecutions involving abandoned or illegitimate children. 

Patton v. Entercom Kansas City LLC, supra.

The judge then found that Patton’s

assertions do not demonstrate that her need for privacy outweighs the public's interest in access to open court proceedings. Openness provides a substantial benefit and the public has an interest in knowing the identities of litigants. Raiser v. Church of Jesus Christ of Latter-Day Saints, 182 Fed. Appx. 810 (U.S. Court of Appeals for the 10^th Circuit).   

Only in exceptional circumstances will the need for anonymity outweigh the presumption in favor of open proceedings. Raiser v. Church of Jesus Christ of Latter-Day Saints, supra. Specifically, `exceptional circumstances exist if the case involves matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure’ of the plaintiff's identity. Raiser v. Church of Jesus Christ of Latter-Day Saints, supra.

[Patton] alleges that the radio announcement involved matters of a highly sensitive and personal nature, but she also represents that she never `had any connection whatsoever with pornography.’ One's sexual practices and preferences are among the most intimate parts of one's life. Doe v. B.C.B.S. of Rhode Island, 794 F.Supp. 72 (U.S. District Court for the District of Rhode Island1992) (permitting transsexual plaintiff to proceed under pseudonym). When these practices fall `outside the realm of conventional practices which are generally accepted without controversy, ridicule or derision, that interest is enhanced exponentially.’ Doe v. B.C.B.S, supra. 

Patton does not argue that her sexual practices fall outside the norm. To the contrary, she denies any connection to pornography. Her denial leaves the inference that her intimate lifestyle choices fall within the mainstream. Her argument, therefore, does not elevate her interest in privacy to the level necessary to allow her to proceed under a pseudonym.

Furthermore, this is not a case where the injury litigated against would be incurred as a result of the disclosure’ of plaintiff's identity.  M.M. v. Zavaras, supra. Taking [her] allegations as true, the injury already occurred. She is not suing to prevent disclosures from being made; rather, she is suing for compensation for disclosures that have been made. The evidence presented shows that the `cat is already out of the bag,’ and the Court will not attempt to put it back. 

Patton v. Entercom Kansas City LLC, supra.

The judge then went on to explain that

[b]y initiating this action for damages, [Patton] has chosen to bring a private matter into the public eye. She provides no evidence upon which the Court could conclude that the injury that she describes will be repeated or exacerbated as a result of this litigation. 

Prosecuting a lawsuit is much different than being the surprise subject of one-sided shock-talk on a morning radio program. [Patton] will have an obligation to tell her side of the story. She will also have to relive the facts of the case whether or not she proceeds under a pseudonym. . . .

Patton v. Entercom Kansas City LLC, supra.

She concluded by noting that

although the Court acknowledges Patton greatly values her reputation as a community member and future lawyer, plaintiffs alleging damage to their personal and professional reputations are generally not allowed to proceed anonymously. . . .The possibility of a plaintiff suffering embarrassment is also not enough to outweigh the presumption of openness. M.M. v. Zavaras, supra.  

[Patton] has not demonstrated that this case presents such an unusual situation that the need for anonymity outweighs the public interest in open court proceedings. See id. Accordingly, the Court overrules [her] motion to proceed under a pseudonym.

Patton v. Entercom Kansas City LLC, supra.

Finally, the judge explained that federal courts have

long recognized a common-law right of access to judicial records. Helm v. Kansas, 656 F.3d 1277 (U.S. Court of Appeals for the 10th Circuit 2011).  And, although the Court has discretion to seal documents if the parties advance competing interests that outweigh the public's right of access, . . . [Patton] fails to address any of the factors that may support such a conclusion by the Court. Thus, the Court denies plaintiff's motion to proceed under seal. 

Patton v. Entercom Kansas City LLC, supra.

That, though, apparently did not end the matter. The U.S. District Court Judge who has been assigned the case issued the opinion examined above on July 11, 2013. As you can see, this “Stipulated Protective Order” was entered on July 25 by U.S. Magistrate Judge to whom the District Court Judge presumably referred this issue.   

The order is lengthy, but the purpose is to “prevent the disclosure of matters  deemed confidential under the terms of this Order to persons or entities other than those involved in the prosecution or defense of this litigation and to facilitate the exchange of information between the parties.”  Stipulated Protective Order, Patton v. Entercom Kansas City LLC (July 25, 2013).  Interestingly, Entercom, which opposed Patton’s effort to bring the lawsuit under a pseudonym or have the proceedings sealed, “stipulated to the terms of this Order.”  So, Patton has apparently gained some measure of privacy in her suit against the radio station.

Murder, Text Messages and the Motion in Limine

After he was “indicted on one count of Murder in the First Degree, two counts of Attempted Robbery in the First Degree, one count of Conspiracy in the Second Degree, and two counts of Possession of a Firearm during the Commission of a Felony”, all in violation of Delaware law, Jermaine M. Zachary filed a motion in limine in which he argued that certain evidence should not be admitted at his trial.  State v. Zachary, 2013 WL 3833058 (Superior Court of Delaware 2013). As Wikipedia explains, a motion in limine is a motion a party to a civil or criminal case files, prior to trial, asking the judge to admit or exclude certain evidence. 

This, according to the opinion, is how the case arose:

On September 25, 2009, at approximately 2:50 p.m., Robert Watkins was shot and killed during an apparent robbery in Dover, Delaware. Watkins and his girlfriend, Rosita Brady, had agreed to meet Jermaine Zachary and the shooter at a residence on Jeffrey Drive with the intent to purchase pit bull puppies from a man named `Jonesy.’ 

Brady told police they drove to the residence with $1,800. When they arrived at the residence, [Zachary] got into the rear passenger seat of the vehicle and asked Brady if her vehicle was for sale.

At this time, the shooter, who was standing outside the vehicle, pulled out a handgun and pointed it at the victim. Watkins was shot once in the torso and later pronounced dead at Christiana Hospital. Delaware State Police questioned [Zachary] on the day of the murder. Brady identified [Zachary] as `Jonesy.’

State v. Zachary, supra. The court also explains that

no arrests were made in the case until July 2012, when Detective Mark Ryde, who had been recently assigned to the case, reviewed [Zachary’s] cellular phone records. Ryde discovered a series of text messages exchanged by [Zachary] and the user of a prepaid cell phone number with the number 202–236–4884 (hereinafter `the 202 number’) between 12:20 p.m. and 12:48 p.m. on the day of Watkins' death. The State alleges that these text messages are strong circumstantial evidence that [Zachary] conspired with the user of the 202 number, which the State purports was the alleged shooter, to rob Watkins and Brady.

State v. Zachary, supra.  In a footnote, the court explains that since the “alleged shooter has not been charged for his role in Watkins' death”, the court will “abstain from identifying this individual by name.”  State v. Zachary, supra. 

In his motion in limine, Zachary argued that “the following text messages exchanged between [his] cell phone and the 202 number in the hours preceding the shooting” should not be admitted into evidence at his trial:

Sent to 202–236–4884 at 12:24 p.m.: ‘Kum Rob Dub $RootOfAllEvil’

Received from 202–236–4884 at 12:24 p.m.: ‘Were u at’

Sent to 202–236–4884 at 12:25 p.m.: ‘Murda im about a shoot dice $RootofAllEvil’

Received from 202–236–4884 at 12:25 p.m.: ‘He shootn now’

Sent to 202–236–4884 at 12:28 p.m.: ‘were u at $RootofAllEvil’

Received from 202–236–4884 at 12:29 p.m.: ‘Felton’

Sent to 202–236–4884 at 12:29 p.m. ‘Oh I ant even gonna start shootn then $RootofAllEvil’

Received from 202–236–4884 at 12:29 p.m.: ‘Ight’

Sent to 202–236–4884 at 12:48 p.m.: ‘Yo u still dwn there he got like 1500 on em $RootOfAllEvil’

Received from 202–236–4884 at 12:48 p.m.: ‘Dam yea get em or stay wit him.’

State v. Zachary, supra. 

More precisely, Zachary argued that the text messages should not be admitted “on the grounds that they cannot be properly authenticated, are irrelevant, and are unduly prejudicial under Rule 403 of the Delaware Rules of Evidence (hereinafter `D.R.E.’).”  State v. Zachary, supra.  The prosecution filed a response to Zachary’s motion, in which it argued that the text messages

both prove the existence of a conspiracy to rob the victim and his girlfriend, and serve as statements made in furtherance of that conspiracy. Thus, the State argues that the text messages are highly relevant, and that their probative value is not outweighed by their prejudicial effect.

State v. Zachary, supra. 

The court addressed Zachary’s arguments as to why they should not be introduced into evidence in the order in which he made them, beginning with the issue of authentication.  State v. Zachary, supra.  As to the law on authentication, the judge explained that it is an

[indispensable condition precedent to the admissibility of documentary evidence. D.R.E. 901(a). This requirement is satisfied when the proponent of the writing or document in question produces evidence `sufficient to support a finding that the matter in question is what its proponent claims.’ D.R.E. 901(a). Potential methods of authentication are illustrated in Rule 901(b).

The most germane to the present case is found in D.R.E. 901(b)(4), which provides that a finding of authenticity may be based entirely on circumstantial evidence, including the document's `[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances.’ Proof of authorship need not be conclusive, but a prima facie showing of the author's identity must be established for the writing to be admissible.

State v. Zachary, supra (quoting U.S. v. Sinclair, 433 F.Supp. 1180 (U.S. District Court for the District of Delaware 1997)).

The judge then took up the issue of whether the text messages at issue in this case had been or could be properly authenticated:

Whether text messages are subject to the same authentication requirements under D.R.E. 901 as other electronic documents appears to be a somewhat novel question of law in this jurisdiction. Thus, I find it helpful to consider the decisions of other courts that have addressed this issue. 

For example, in Commonwealth v. Koch, 39 A.3d 996 (2011), the Superior Court of Pennsylvania considered the authentication of text messages transcribed from the defendant's cellular phone. The court held that the police detective's description of how he transcribed the text messages from the defendant's cell phone, together with his representation that the transcription was an accurate representation of the text messages on the phone, was insufficient to authenticate the identity of the author as the defendant.

The court observed that, as with non-electronic documents generally, the identity of the sender is critical to the authentication of text messages, and that `the difficulty that frequently arises in . . . text message cases is establishing authorship.’ A person cannot be identified as the author of a text message based solely on evidence that [it] was sent from a cellular phone bearing the telephone number assigned to that person because `cellular telephones are not always exclusively used by the person to whom the phone number is assigned.’ 

Thus, some additional evidence, `which tends to corroborate the identity of the sender, is required.’ Circumstantial evidence corroborating the author's identity may include the context or content of the messages themselves, such as where the messages `contain[ ] factual information or references unique to the parties involved.’ Other jurisdictions have also looked to the context and content of the messages for sufficient circumstantial evidence of their authorship.

State v. Zachary, supra (quoting Commonwealth v. Koch, supra).

The judge found the reasoning of Koch persuasive, noting that “[e]stablishing the identity of the author of text messages through the use of corroborating evidence is critical to satisfying the authentication requirements of D.R.E. 901.” State v. Zachary, supra.  He therefore found that to have the messages admitted at Zachary’s trial, the prosecution, “as the proponent of the text-message evidence, must explain the purpose for which the text messages are being offered and provide sufficient direct or circumstantial evidence corroborating their authorship to satisfy the requirements of D.R.E. 901.”  State v. Zachary, supra. 

The judge explained that in this case, the prosecution          

intends to offer the text messages both as evidence that [Zachary] conspired with the alleged shooter to rob Watkins and Brady, and as statements of co-conspirators. As such, the messages are only relevant to the extent that the State can authenticate that [he] authored all of the outgoing messages and that the alleged shooter authored the incoming messages. 

The parties agree that [Zachary] authored all of the outgoing messages. Indeed, the State is prepared to corroborate that [he] was the author of the outgoing messages with testimony from various witnesses with knowledge of [Zachary’s] cell phone number and use of the signature `$RootOfAllEvil.’

Glaringly absent in this case is any evidence tending to substantiate that the alleged shooter wrote the 202 messages. In the present case, authentication requires more than mere confirmation that the 202 number belongs to a particular person.  Indeed, the 202 number was issued to a prepaid cell phone, and, therefore, had no registered owner or user associated with it. Thus, the State must rely on circumstantial evidence to corroborate that the alleged shooter authored the 202 messages.

At the evidentiary hearing [on the motion in limine], the State announced its intentions to authenticate the text messages by the content of the exchange. The State argued that only the alleged shooter would be inquiring into [Zachary’s] whereabouts in the hours preceding the shooting, and that a jury could reasonably infer from the messages themselves that the alleged shooter was speaking of Watkins and Brady when he told [Zachary] to `kum rob dub’ and `get em and stay wit him.’

State v. Zachary, supra. (In a footnote, the judge points out that at the evidentiary hearing on the motion in limine, "counsel informed the Court that the payment records that the State could have used to determine the identity of the prepaid phone user were no longer available from the provider." State v. Zachary, supra.)

The judge did not buy the prosecution’s argument, explaining that the content of

this conversation is somewhat cryptic. It's equally plausible to infer that [Zachary] was merely discussing his gambling activities with an unknown individual in this exchange. 

There are no contextual clues in the text messages themselves that tend to corroborate that the alleged shooter authored the incoming text messages. In other cases in which a message has been held to be authenticated by its content, the identifying characteristics have been much more distinctive of the purported author and often have been corroborated by other events or with forensic computer evidence.

Without additional evidence from which the jury could infer that the alleged shooter authored the incoming messages, the State cannot authenticate the 202 messages. Without proper authentication, this text message exchange is simply not relevant to this case; as it does not have the tendency `to make the existence of any fact that is of consequence to the determination of the action more or less probable’ than it would be without it. D.R.E. 401. Because the State cannot satisfy the requirements of D.R.E. 901, I need not reach the additional bases for exclusion argued by [Zachary].

State v. Zachary, supra. 

The judge therefore granted Zachary’s motion in limine.  State v. Zachary, supra.