Unauthenticated text messages may not be admitted as evidence in trial, the state Superior Court has ruled, adding to the state’s body of case law regarding the evidentiary boundaries of electronic communications.
In granting a new trial to defendant Amy N. Koch, a unanimous three-judge panel found there was no evidence showing Koch wrote the drug-related text messages police found on her phone. The court also decided the texts constituted inadmissable hearsay.
One former prosecutor predicted the decision would be “fertile” ground for future arguments over the admissability of electronic communications.
“Glaringly absent” in the case of first impression was evidence — be it testimony or clues from the texts identifying Koch as the author — that Koch wrote the messages, the panel found. Koch admitted to owning the phone, which police seized during a 2009 drug search of her home, but successfully argued the state lacked evidence tying her to the texts. A detective admitted that some of the messages found on the cell phone referred to Koch in the third person and “were clearly not written by her,” according a 20-page opinion filed this month.
But the district attorney of Cumberland County said the texts should have been viewed as a factor in the state’s “totality of circumstances” argument and likened the messages to an “owe sheet” police look for in drug busts.
The court in Commonwealth v. Koch cited a number of relevant cases from North Dakota to North Carolina, finding that courts have required more than establishing ownership in order to prove authorship — an evidentiary standard mirroring that of non-electronic documents under the state rules of evidence.
“In the majority of courts to have considered the question, the mere fact that an e-mail bears a particular e-mail address is inadequate to authenticate the identity of the author; typically, courts demand additional evidence,” Judge Mary Jane Bowes wrote for the court.
And, although text messages are “somewhat different” because they are “intrinsic” to an individual cellular phone, Bowes acknowledged that doesn’t mean more than one person cannot use the same phone.
As a result, courts deciding similar cases have required either witness testimony pegging an author to a document, or that the document itself contain “factual information or references unique to the parties involved,” Bowes said.
During Koch’s trial, a Cumberland County Common Pleas Court judge allowed the texts to be admitted over a defense objection, Bowes said. The trial court, she said, ruled that any doubt regarding their author went to the weight of the evidence, rather than its admissibility.
But Bowes dismissed that reasoning, noting that “authentication is a prerequisite to admissibility.”
That police found the phone on a table near Koch was “of no probative value in determining whether she authored text messages days and weeks before,” Bowes said.
Koch was sentenced to 23 months’ probation after being convicted of possession of controlled substance with intent to deliver as an accomplice and possession of a controlled substance as an accomplice.
In addition to disregarding the lack of evidence about the texts’ author, Bowes said the trial court also erred on the basis of hearsay when it admitted the texts.
She rejected the state’s argument that the texts were not “offered for the truth of the matter asserted” and, therefore, were not hearsay.
During trial, the state argued the texts were offered to “‘prove the fact that these things were said on this phone,’” making it more probable that Koch intended to sell marijuana when she possessed it, as opposed to personal use, according to Bowes.
But Bowes said the only relevance of the messages was for the state to show Koch possessed with an intent to deliver, adding that the evidentiary value of such messages “depended entirely on the truth of their content.”
On top of the evidence being improperly admitted, Bowes said the state also used it to lend credence to the detective’s testimony that the texts indicated a drug exchange and that the transaction did occur.
But the “mere existence of the text messages themselves was not enough to prove PWID,” she said. “The jurors had to believe the actual text of the text messages, that is, the matters asserted therein, to grasp what the text messages were offered at trial to prove.”
Had the state been able to prove Koch were the author, Bowes said, the texts could have been admitted under state hearsay rule for admissions of a party opponent.
The panel cited a number of decisions from jurisdictions nationwide on the developing area of law regarding text messages and electronic documents, many of which held electronic communications to the same authenticity standards as paper evidence. Particularly instructive to the court was In the Interest of F.P., a 2005 state Superior Court case in which the court decided circumstantial evidence may be used to authenticate a document (electronic or otherwise) “where the circumstances support a finding that the writing is genuine,” Bowes said.
In the case, the court decided there was sufficient evidence to authenticate instant messaging transcripts between two minor students, identified only by their alleged screen names — Icp4Life30 and WHITEBOY Z. According to Bowes, the F.P. court relied upon testimony from the victim, WHITEBOY Z, alleging that the defendant was Icp4Life30, a handle that had sent him threatening messages. During a mediation between the victim and defendant, the defendant never denied sending the messages, Bowes said. She also noted the contents of the messages identified the defendant by his first name in one instance.
Based on this evidence, the court decided it had enough to identify Icp4Life30 as the defendant and authenticate the transcripts.
Importantly, Bowes said, the F.P. court “rejected the argument that e-mails or text messages are inherently unreliable due to their relative anonymity” because the “same uncertainties existed with written documents.”
Therefore, the F.P. court held that evidence regarding electronic communications could be authenticated within the framework of existing state rules of evidence and declined to create new rules regarding the admissibility of electronic evidence, Bowes said. The court decided that such evidence would be evaluated on a “case-by-case basis,” she added.
‘Glaringly Absent Evidence’
According to the opinion, a confidential informant tipped off police that Koch’s brother, Norman Koch, was selling cocaine out of the North Middleton Township, Pa., house that he shared with Koch and her boyfriend.
After a trash search yielded two baggies containing marijuana and cocaine residue, North Middleton Township Det. Timothy Lively applied for a search warrant of the house, which was executed on March 25, 2009.
During the search, police found two bags of marijuana and $700 in a dresser drawer containing “male socks and underwear,” various marijuana paraphernalia, a small bag of marijuana in a basement freezer, and scales containing marijuana residue on top of the refrigerator.
Police seized Koch’s phone, as well as her brother’s. After Koch’s text messages were transcribed, the state offered testimony and a transcript of what it said reflected 13 drug-related texts.
This came over objections as to authenticity and hearsay, according to Bowes. A jury found Koch guilty as an accomplice to the PWID and possession charges. She was acquitted of conspiracy to commit possession with intent to deliver.
Following the panel’s Sept. 16 decision, Koch awaits a new trial.
After reviewing the record, the panel determined the admission of the texts could have reasonably contributed to the jury’s verdict.
“This is not a case where the commonwealth presented overwhelming properly admitted evidence regarding [Koch's] involvement in drug transactions,” Bowes said, adding that the prosecution’s case rested on the texts and evidence that drugs were found in Koch’s shared bedroom and other areas of the house.
But Cumberland County District Attorney David Freed said the texts should have been allowed because they indicated a certain level of drug activity on Koch’s part and, at the very least, showed Koch’s liability as an accomplice.
And while the case did reflect a “novel issue” in the state, Freed said the state focused less on the technology, and more on the argument that the texts reflected an “indicia of drug dealing.”
Freed spoke on behalf of Matthew P. Smith, who tried the case for the state. Freed said the state is leaning toward applying for a reconsideration before an en banc panel of the Superior Court.
Michael O. Palermo Jr., who represented Koch, did not return a call requesting comment.
Matthew T. Mangino, a criminal practice columnist for the Law Weekly and former Lawrence County district attorney, said the decision will give prosecutors a “roadmap” as to how to get text messages admitted in court. Mangino called Koch the type of case that is “fertile for argument” as technology continues to reshape the legal practice.
“These are the kind of things there’s going to be a lot more arguments on,” he said. “We’re moving to a situation where we are using e-mails and texts more and more and putting the post office out of business with electronic communications.”
But Leonard Deutchman, a cyberlaw columnist for the Law Weekly , disagreed with the court’s reasoning, adding the trial court properly admitted the texts. Any question regarding their authorship, he said, was for a jury to decide.
Based on the current legal standards, he said, the evidence proving authorship of such text messages would be stronger than that which shows drugs belong to a person after the drugs are found in a home he or she shares with other people.
“I think that because drugs are old and text messages are new, that the court is treating text messages in a way that it shouldn’t be and not understanding that [phones] should be treated like any other artifact,” Deutchman said.
He said that by merely transcribing the texts and offering them as evidence, the state’s approach was “pretty low tech.”
One approach Deutchman suggested was to match entries in the phone’s call log with the times of the text messages.
“What if the call log had a call to her mother?” he said. “Was somebody else calling her mother?”
“Maybe,” Deutchman said. “But that goes to weight and not admissibility.”
(Copies of the 20-page opinion in Commonwealth v. Koch , PICS No. 11-4106, are available from Pennsylvania Law Weekly . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m. Tuesday.)