Stored Communication Act (SCA) & Admissibility of Text Messages

A Defendant convicted of murder and attempted murder challenged the admission of three text messages at his trial. The Supreme Court of Arkansas found no error in admitting the text messages.

Texting-Hand

The Stored Communication Act

The Defendant challenged the admission of the text message content based on the Stored Communication Act. The SCA challenge included three separate arguments:

The State incorrectly used a prosecutor’s subpoena to obtain the text messages rather than a search warrant, as required by the SCA;

The Government’s acquisition of the substance of the text messages via subpoena violated his constitutional rights under the Fourth Amendment to the United States Constitution;

The State conducted an illegal search under the Arkansas Constitution.

Gulley, at *3.

The State argued the Defendant failed to preserve his claims under the SCA and State Constitution for appellate review. As to the 4th Amendment argument, the State claimed the argument was without merit because the text messages were procured by prosecutor’s subpoena pursuant to a statutory power granted to state prosecutors without any allegations of abuse of power. Gulley, at *4.

The Court agreed the Defendant failed to preserve the Stored Communication Act and the State illegal-search arguments for appeal. Gulley, at *4.

Admissibility of Text Messages

The Defendant challenged the admissibility of the text messages on hearsay and authentication grounds.

The hearsay argument quickly failed, because the issue preserved from the trial was another sender’s text messages on hearsay grounds, not from the Defendant’s text messages. As such, the Defendant could not change arguments on appeal, thus resulting in the hearsay argument being barred from review. Gulley, at *17-18.

However, there was enough of a challenge as to whether the Defendant sent the messages to preserve an authentication argument.

Arkansas Rule of Evidence 901(a) states that the “requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.” Gulley, at *18. Moreover, “the testimony of a witness with knowledge that a matter is what it is claimed to be is sufficient to authenticate evidence, and also that appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances can be used to authenticate evidence.” Gulley, at *19, citing Ark.R. Evid. 901(b)(1) &(4).

The Court reviewed each text message and held each was properly authentication by witnesses with knowledge, plus other circumstances showing authenticity. Gulley, at *19.

The first text message was properly admitted based on the testimony of three witnesses and the contents of the message, which demonstrated sufficient facts to authenticate the text message. Gulley, at *19-20.

The second message stated, “I’m getting dropped off over there.” One witness testified that the phone number was assigned to the Defendant and another witness testified to seeing the Defendant dropped off near the victim’s apartment before the murder. Based on the testimony and the timing of the message to the victim’s murder, the Court held authentication was proper. Gulley, at *20-21.

The third text message focused on the content of the message and witness testimony. The message included in part, “Dat’s okay too, I got a car out of the deal…” Gulley, at *21.

The witness testified that the Defendant had called her from the phone number that also sent her the text messages. Moreover, the witness knew the victim assisted the Defendant in financing a car, which was evidenced in the statement, “I got a car out of the deal.”

The Court held all the evidence was sufficient to authenticate the text messages were sent from the Defendant and each was properly admitted at trial. Gulley, at *21-22.

Bow Tie Thoughts

How we live surfaces in how we litigate. Additionally, while civil cases have addressed many eDiscovery issues, criminal cases have addressed admissibility issues of ESI.

Here is a very important take away from admissibility: the same rules of evidence apply to ESI just as they have applied to everything else for 200 years.

Text messages are one of the most common forms of ESI today. For example, teens are estimated to send 60 text messages a day (boys around 50; older girls around 100). Put in other terms, approximately 1.5 trillion text messages were sent in 2009. That number will only go up as more people have smartphones.

What does this mean for civil and criminal litigation? First, the ESI must be preserved. There are many technologies that can preserve text messages, from a collection directly off the phone, to texts backed up to a computer, to screen shots, to photos of the phone, to from the service provider. Second, attorneys cannot forget to request the ESI if text messages are relevant to a case. Third, the same rules of admissibility apply, just as they have applied for the last 200 years.

An iPhone Left in a Locked Bathroom is Not “Abandoned” under the 4th Amendment

Given the number of iPhones sold, it is no surprise to see a case like People v. Schutter.

The Defendant had left his iPhone in a locked convenient store bathroom.  When the Defendant went back to the store to get the phone, the store clerk refused, because the clerk was “busy.”  The Defendant left after being told to come back later. Within an hour, a police officer went to the store.  The clerk turned the phone over to the police officer, who had been told the above facts. People v. Schutter, 2011 Colo. LEXIS 246, at *9-11 (Colo. Mar. 28, 2011).

The police officer searched the phone and found incriminating text message evidence.

The District Court suppressed the evidence found on the warrantless search of the iPhone because 1) the Defendant did not abandon the phone and 2) even if the phone had been lost or mislaid, the police violated the Defendant’s reasonable expectation of privacy of his phone’s contents.  Schutter, at *2-3.  The State filed an interlocutory appeal.

The Colorado Supreme Court affirmed the District Court, because the iPhone was not abandoned, lost or mislaid under the facts of the case, thus the warrantless search violated the 4th Amendment.  Id.

The Colorado Supreme Court did not wade into the swamp of when a police office could conduct a warrantless search of property that had been lost or mislaid.  Schutter, at *8.  The Supreme Court focused on the facts of the case, finding the following:

Under these circumstances, the officer had no grounds to believe the property’s safe return required the discovery of any further information. Assuming, without deciding, that the Fourth Amendment could tolerate, under some set of circumstances, some kind of warrantless examination of a cell phone to ascertain how it might be returned to its owner, this case cannot present that set of circumstances.

Schutter, at *9-10.

There was one dissenting opinion, taking issue with the Defendant not asking the clerk when the clerk would not be busy, setting a time to return for the phone or leaving his contact information.  Schutter, at *11.  As such, this one justice would find the phone abandoned.  Schutter, at *12.

Bow Tie Thoughts

A 32 Gigabyte iPhone can hold a lot of data, be it in the form of contacts, photos, text messages or Apps.  Moreover, there are millions of Smartphones on the market.  It is a guarantee that Courts will address both civil and criminal issues involving these highly portable and sometimes easy to leave behind devices.

Ahhh– We have to review the Text Messages for Mr. Big – Now What?

By Tom Groom, Vice President, D4 LLC

There are very few people today who don’t thumb text messages on their phones. We tend to treat text messages as if they can’t be retrieved once we hit send. “Nobody will find this” one may tell themselves. Oh really? What happens when opposing counsel requests text messages be included from one of your key custodians? At first you object in that your client’s text messages are not “reasonably accessible” but that argument isn’t as easy to win as it used to be. Once you’ve accepted the fact that review of the text messages is going to happen, the question hits you — “How can text messages most efficiently be reviewed?”

The answer may surprise you. Think of each individual text message as a record (like an email or Word document). If properly collected, each text message record has metadata associated with it that can be used to stitch together the bigger story. Text message timeframes are normally measured in seconds (vs. days as with email), so they are often reviewed in a separate database than email or scanned documents. The key for efficient text message review is to have a common “date and time” field to sort the messages in order to create a conversation. This is especially true if messages for more than one custodian are being reviewed. Another key is to leverage relational fields that can be used to associate phone numbers to participants as well as to enable “group and pivot” reports between phones, participants, timeframes and even conversational tone.

Relativity hosted by D4 provides such a platform, as shown in the screen shots below. Text messages from three different phones were placed into this database. From here the reviewer can choose which phones to include as well as which participants to include in the query. Sorting by date and time will piece together the text messages between parties which can help establish intent and/or reveal interesting behavior.

 

Using the new “Pivot” feature in the Relativity 6.x system, one can analyze which participant created the most messages.

 

By grouping on participant and pivoting on “tone”, one can determine which messages are sent and received for business, personal and with some enhancement, the type of conversational tone used in the message such as “aggressive” or “flirtatious”.

You will likely be involved with a case involving cell phone collection and review in the future.  When that happens, be assured there are processes and tools that you can leverage to make text messages collected from phones more useful for your matter.

Text Messages as Party Admissions to Prove a Prima Facie Case

The Plaintiff in a sexual harassment case was able to demonstrate a prima facie case to overturn a summary judgment on the narrow issue whether she was retaliated against for filing her lawsuit.  Magiera v. City of Dallas, 2010 U.S. App. LEXIS 16802 (5th Cir. Tex. Aug. 11, 2010).

The key evidence? A text message.

One of the challenges to the summary judgment was whether there was sufficient evidence for a jury to find that the Plaintiff was removed from her field training officer (FTO) duties because of her sexual harassment complaint.  Magiera, at *9-10.

The Plaintiff’s removal from FTO duties meant she received less compensation.    Id.

The Defendant conceded in oral argument that the Plaintiff being removed from her FTO duties was a material adverse action. Id.  

Here is how the Plaintiff was able to show a prima facie case:  A sergeant testified that her supervising lieutenant stated that the Plaintiff was not on FTO because another lieutenant was “angry” the Plaintiff had filed her lawsuit.  Magiera, at *10.

The same sergeant sent the Plaintiff the following text message:    

“I was told by [W]oodbury that [B]arnard said you had a law suit against the city and you shouldnt [sic] train because of the suit.”

Magiera, at *10.

The Plaintiff argued that the statements in text message evidenced the retaliation for her lawsuit.  Magiera, at *10.

The Defendant challenged the text message as not competent summary judgment evidence, because it was hearsay.  Magiera, at *10-11. 

The Plaintiff argued that the statement was admissible as a party admission, under Federal Rule of Evidence Rule 801(d)(2)(D).

The Party Admission Rule states that an admission by a party-opponent is not hearsay, if “[t]he statement is offered against a party and is . . . a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.”  Magiera, at *11, citing Federal Rule of Evidence Rule 801(d)(2)(D).

The Court agreed.  The Lieutenant who made the statement (if it was true) was speaking in the course of his employment, which would make the statement admissible as a party admission.  Magiera, at *11.

The Court held that the Plaintiff made a prima facie case on the retaliation claim and reversed and remanded on those specific grounds.  Magiera, at *15-16. 

Bow Tie Thoughts

Text messages are quick and easy to send.  Attorneys should not overlook requesting text messages in discovery, there could be a smoking gun to make your case…or at least survive a motion for summary judgment.

Authenticating Cell Phone Records

In a negligence case where a plaintiff was the victim of a car crash, the Defendant trucking company attempted to introduce out-of-time third-party custodian affidavits and witnesses on the last day of discovery.  Boling v. Mohawk Indus., 2010 U.S. Dist. LEXIS 75674 (D.S.C. July 27, 2010).

The Court denied the out-of-time affidavits because they prejudiced the Plaintiff.  Boling, at *7-8. 

However, the Court left open the possibility for the cell phone provider custodian to testify if there were admissibility issues.  Boling, at *8. 

The Defendants argued the cell phone witness was identified in response to the Plaintiff’s answer to a request for admission regarding the cell phone records.  While the Plaintiff admitted the authenticity of the text message records, he denied the timing of the text messages.  Boling, at *8-9. 

The Court found that the Plaintiff should have expected the cell phone custodian’s involvement in the case, because the text message records were the subject of discovery.  Boling, at *9-10. 

However, the Court did not give the Defendants an unlimited texting plan.  The witness would be a lay witness governed by the Federal Rules of Evidence.  Moreover, the witness could not testify as to when the Plaintiff sent or received text messages, because that would be expert testimony.  Boling, at *10. 

While the third-party witnesses would be allowed to testify, their testimony would be limited to authenticity issues.  Boling, at *10. 

Bow Tie Thoughts

You are hard pressed to find a party living off the grid without a cell phone of some sort.  Authenticating this ESI may require a third-party witness and sometimes an expert. 

SmartPhones are not the only technology that might require third-party testimony.  People are often “cloud” dependant on email and high-speed internet service providers for our App powered lives.

Parties should be prepared for third-parties to testify as to the admissibility of certain electronically stored information.  Attorneys should consider whether a records-custodian is sufficient, or if the case requires an expert to explain the timing of text messages or explain ISP addresses.

Convicted by Text Message: Overcoming Authentication & Hearsay Objections

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. 

Defendant’s Arguments

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

Authentication is a “condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”  Thompson, at *P21. 

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.

Hearsay Challenge

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 Supreme Court of North Dakota quickly shot down the arguments that a text message was “unreliable” and could have been sent by the victim.  Thompson, at *P25-26. 

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.

5150 Texting, Drinking & Guns Don’t Match

A man was prohibited from owning fire arms and appealed the decision.  The road leading up to the gun ban started on November 2, 2008…after fighting and texting with his girlfriend.  People v. Akers, 2010 Cal. App. Unpub. LEXIS 102 (Cal. App. 4th Dist. Jan. 7, 2010).

The Petitioner, while drinking and having a history of bipolar disorder, sent his girlfriend text messages where he threatened to kill himself. 

The girlfriend called the police after getting the text messages.  Akers, at *1.

The Police found the Petitioner walking the streets very late at night with a loaded .40-caliber handgun.  Akers, at *1-2. 

The Petitioner was held over night in a  psychiatric hospital pursuant to the California “5150” statute, which allows the police to take someone into custody who is a danger to himself or others for up to 72 hours at a state approved mental hospital.  Akers, at *2. (For the 1980s music fans, the statute inspired the title to the first Van Halen album with Sammy Hagar).

The police confiscated the Petitioner’s handgun…along with three other guns in his apartment. 

Johnny Get Your Guns

The Petitioner moved the court to return his guns, six weeks after being detained, claiming he was on his bipolar medication and his text messages were an “error of judgment” to get attention from his girlfriend.  Akers, at *4. 

The Trial Court did not agree.  The Trial Court found the petition to return the Moving Party’s guns, being only weeks after the 5150 texting episode, as being premature to determine if it was safe for him to have four guns.  Akers, at *5. 

The Court of Appeals upheld the Trial Court’s findings.  The Court of Appeals found that just not enough time had passed since the  Petitioner’s texts threatening suicide, him walking the streets armed with a load gun while intoxicated and the ending of his stressful relationship.  Akers, at *6-8. 

To put it bluntly, six weeks was not enough time to give him back four guns.

Bow Tie Thoughts

The key evidence alerting the Petitioner’s former girlfriend and police that the Petitioner was possibly a danger to himself were his text messages.  While the opinion is silent on how the text messages were collected, it most likely was with a device seizure tool or produced by the cell phone provider. 

More importantly, the Court of Appeals did not simply refer to the text messages as text messages, but as “communications.”  Akers, at *7.  Seeing a Court recognize the data not merely as electronically stored information but as a communication continues the judicial recognition of our society’s digital evolution.