A wife was convicted of simple assault on her husband. Text messages were used in her conviction to show her state of mind. The Defendant appealed her conviction, claiming the text messages from her phone, the victim’s phone and a photo exhibit of a text message were improperly admitted on foundational and hearsay grounds. State v. Thompson, 2010 ND 10, P1 (N.D. 2010).
The Supreme Court of North Dakota did not agree with her.
The Facts: An SMS State of Mind of Assault
Halloween 2008: the Defendant “texted” her husband for money to buy their children Halloween costumes. Thompson, at *P3. One text message sent at 8:20 am contained threatening and profane language. Id.
After the husband and wife drove the children to school, the Defendant demanded money and refused to get out of the victim’s car. The victim had to drive to the police department for the Defendant to be removed from the car. Thompson, at *P3.
Police were called to the Defendant’s house after 11:00 pm that night, finding the victim nursing an injured eye and several blows to the face and back. The husband was hit several times by the wife in a fight over money. Thompson, at *P3.
The wife was arrested and convicted for assault.
Motion in Limine to Exclude Text Messages
The Defendant brought a motion in limine to exclude any testimony or evidence of the text messages. Thompson, at *P6. The Defendant claimed the texts were not relevant and inadmissible. Thompson, at *P9.
Text Messages at Trial
The victim testified at trial about a threatening and profane text message sent the morning of the day he was attacked by the Defendant. Thompson, at *P7. The State offered a photo of the text message as a trial exhibit. Id.
The Defendant claimed the victim could have sent himself the threatening text from the Defendant’s phone. Thompson, at *P7.
Text Messages State of Mind
The trial court allowed the text messages at trial to show the Defendant’s state of mind the day of the attack. Thompson, at *P11.
The Defendant claimed the State failed to authenticate the text messages.
The Defendant argued that “text messages are inherently unreliable because of their relative anonymity and can rarely be connected, to a certainty, with a specific author.” Thompson, at *P12.
Direct Examination of Victim
The husband stated on direct examination that the text messages were from the Defendant. The victim explained that he stored his wife’s phone number as “Fr: Jen.” Each text message began with the Defendant’s stored phone number in the victim’s phone. The text messages were all “signed” with the Defendant’s signature “cuzImJenIcan.” Thompson, at *P16.
The Defendant challenged the admission of the text messages at trial as hearsay. Thompson, at *P16. The trial court ruled the text messages were “a declaration against interest and therefore not subject to [the] hearsay rule.” Thompson, at *P16.
Rules of Authentication
Pursuant to the Federal Rules of Evidence (which in this case mirrored the state rules), the party offering the evidence “must provide proof sufficient for a reasonable juror to find the evidence is what it purports to be. Thompson, at *P21, citing United States v. Hyles, 479 F.3d 958, 968-69 (8th Cir. 2007).
Authentication of Electronically Stored Information
The Supreme Court of North Dakota had not addressed text message authentication before and examined other case law where electronically stored information had been authenticated. Thompson, at *P24. In all of the cases the Supreme Court of North Dakota discussed, circumstantial evidence was used to authenticate electronically stored information. Thompson, at *P24.
Authentication examples summarized by the Supreme Court of North Dakota included:
E-mails properly authenticated when they included defendant’s e-mail address, the reply function automatically dialed defendant’s e-mail address as sender, messages contained factual details known to defendant, messages included defendant’s nickname, and messages were followed with phone conversations on same topic.
United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000)
Foundational requirement for chat room conversation established when defendant admitted he used screen name “Cessna” when he participated in recorded conversations, several co-conspirators testified he used that name, and defendant showed up at meeting arranged with person using screen name “Cessna.”
United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000)
Threatening text messages received by victim on cell phone were properly authenticated when circumstantial evidence provided adequate proof message was sent by defendant.
Dickens v. State, 927 A.2d 32, 36-38 (Md. Ct. Spec. App. 2007)
Text messages properly authenticated when telephone employees testified about logistics for text messages and about how particular text messages were stored and received and messages contained sufficient circumstantial evidence the victim was the person who sent and received the messages.
State v. Taylor, 632 S.E.2d 218, 230-31 (N.C. Ct. App. 2006)
Instant messages properly authenticated through circumstantial evidence including screen names and context of messages and surrounding circumstances.
In re F.P., 878 A.2d 91, 93-95 (Pa. Super. Ct. 2005)
All cases quoted from Thompson, at *P24.
Text Message Authentication
The Supreme Court of North Dakota held that the authentication of the text messages were proper. The trial court was presented evidence from the victim of his knowledge of the Defendant’s cell phone number and her signature on text messages. This evidence was sufficient under the Evidence Code to authenticate the text messages. Thompson, at *P26.
The Supreme Court of North Dakota curtly dealt with the hearsay challenge: A party’s own statements are not hearsay. Thompson, at *P31.
The Unreliable Text Message Argument
The Court, echoing a Pennsylvania Superior Court that addressed the authentication of instant messages, rejected the “argument that electronic messages are inherently unreliable because of the messages’ relative anonymity.” Thompson, at *P25.
As noted in by the Pennsylvania court in In re F.P., 878 A.2d 91 (Pa. Super. Ct. 2005), paper documents can also be subject to forgery or signature letterhead stolen and used by another. Id. As the F.P. court stated:
We believe that e-mail messages and similar forms of electronic communication can be properly authenticated within the existing framework of Pa. R.E. 901 and Pennsylvania case law. We see no justification for constructing unique rules for admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.
Thompson, at *P25, citing In re F.P., 878 A.2d 91, 93-95 (Pa. Super. Ct. 2005).
The Supreme Court found no error in the trial court’s finding of the victim’s authentication of the text messages and rejected the argument the text messages were “unreliable.” Thompson, at *P26.
Bow Tie Thoughts
State v. Thompson is a thoughtful opinion on the rules of Evidence and authenticating text messages. The one area that could have been worth exploring was how the text messages were collected.
One of the trial exhibits was a photo of the text message. Thompson, at *P7. This certainly is a powerful trial exhibit to show the Defendant’s phone number, the text message and signature line.
However, was the photo the sole means of preserving the text message? It is possible the investigating officers just took photos to preserve the evidence after the incident.
I encourage parties to defensibly preserve relevant electronically stored information using a product like Paraben when dealing with something as transitory as a text message on a cell phone. Alternatively, if the phone is no longer physically available, the cell phone text message history can also be requested from some service provider (this would depend on whether the service provider was retaining any of the text message history). While taking a photo of a text message has been done before, it is good for attorneys to realize the different methods of collection and preservation at their disposal.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.