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April 2008


Courts Confront Admissibility of Text and Instant Messages

By Karen L. Stevenson, LITIGATION NEWS Associate Editor



Trend favors admission of such evidence unless it lacks foundation or sufficient indicia of reliability


As text and instant messages continue to proliferate, courts are weighing the admissibility of this electronic evidence in an increasing number of cases, but are generally holding that—notwithstanding the novel technology involved—these communications can be admissible when the proponent offers direct or circumstantial evidence as to their authenticity.


Rules 901 and 902 of the Federal Rules of Evidence govern the authentication and identification of evidence, and, of them, Rule 901(b)(4) “is one of the most frequently used to authenticate e-mail and other electronic records.” Lorraine v. Markel American Ins. Co [PDF]. “Courts have recognized this rule as a means to authenticate ESI, including e-mail, text messages and the content of websites.” Id. Rule 901(b)(4) is primarily concerned with authentication on the basis of circumstantial evidence.


Text messages are written communications sent from one cell phone to another cell phone or handheld device. Instant messages (IMs) are transmitted via the Internet in real time, often through an account provided by an Internet Service Provider. A screen name or pseudonym is used to identify the sender. Because the sender need only have access to a screen name and a password to transmit an IM, some litigants have challenged the admissibility of IMs as being inherently unreliable, while most courts have found that the existing rules of evidence are flexible enough to address these communications.


Like other courts, a Pennsylvania appellate court has observed that there is nothing inherently remarkable or suspect about IMs insofar as evidentiary standards are concerned. In the Interest of F.P. After making a survey of numerous reported cases involving such evidence, the court wrote: “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.”


At the 2007 ABA Annual Meeting, the Section of Litigation presented a program entitled, “The New Frontier: Admissibility of Electronic Evidence.” In addition to discussing the evidentiary issues involved with other forms of electronically stored evidence (known as ESI), the written materials offered at the program note that because a screen name often reveals little about the sender’s identity, “courts disagree on how much circumstantial evidence is required” to authenticate these communications. “Whenever a litigant seeks to introduce into evidence transcripts of chat room discussions or instant messages, the challenge usually is proving the identity of the persons in the conversation.”


These challenges, however, are not insurmountable. The New York Appellate Division, for example, recently held that the trial court properly admitted an Internet text message that had been authenticated strictly on the basis of circumstantial evidence. People v. Pierre. The sender, a defendant in a murder trial, allegedly transmitted a message to the victim’s cousin, stating that he did not want the victim’s baby. The prosecution did not ask the Internet service provider to authenticate the message, and the witness who testified to its origination did not print or save the message.


Even so, the witness testified that she knew the defendant’s screen name, and she had sent an instant message to that name. The Appellate Division noted that the defendant had sent the witness a reply that would have made no sense unless it had come from the defendant. Most importantly, there was no suggestion that anyone had impersonated him. Thus, the court found that these factors were sufficient to warrant admission of the message.


The California Court of Appeal, by contrast, has held that a trial court was justified in excluding a text message when prosecutors offered insufficient evidence to authenticate it, and the record showed that more than one person could have transmitted the message. People v. Von Gunten. The court found there was an absence of direct, circumstantial, or other reliable evidence linking the alleged sender to the screen name for the message. The sender invoked his Fifth Amendment privilege, and no witness testified that the sender had ever used the screen name at issue or offered other evidence that he was the source of the message.


IMs have, in turn, played a leading role in cases involving sexual predators. The U.S. Court of Appeals for the Second Circuit recently rejected challenges to the admission of IMs that had been copied and then pasted to create a transcript of his conversation with an undercover agent posing as a minor. United States v. Gagliardi. Noting that the standards for authentication under Federal Rule of Evidence 901 are relatively minimal, the Second Circuit held that even though the transcripts were capable of being manipulated, there was no showing that this actually happened.


With the constant advance and evolution of ESI, litigators have no choice but to keep current with this technology and, when necessary, to retain experts to explain this evidence to trial judges and juries. Last year the Federal Judicial Center published a guide for judges that offers a glossary of leading terms and summarizes the basics of the latest technology and case law in this area.


“As a practical matter,” says Steven A. Weiss, Chicago, former cochair of the Section’s Technology for the Litigator Committee, “because of the myriad of devices being used to send and receive electronic messages, lawyers will usually need an IT expert to access and retrieve IMs and text messages, and to explain to the court how the information is stored in a particular device and how it was retrieved.”


 

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