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.


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.

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.

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.

Classy Text Messages from a Collection Agency

In Hartung v J.D. Byrider of Chandler, et al., 2009 U.S. Dist. Lexis 54415 (2009), the Plaintiff got behind on car payments.  As one would expect, a collection agency became involved. 

As one would not expect, the representative from the Collection agency called T-Mobile, claimed he was Plaintiff’s father and asked to be added to her cell phone account.

The Collection agency representative then began making harassing phone calls and texting to Plaintiff. A total of 17 text messages over 5 days that were sent, that the Court called angry, menacing & intimidating. The representative also claimed he was a lawyer and would have her arrested. 

Below are selected text messages from the Collection Agency Representative:

“[Y]ou have various bills going to crows landing. I can tell by talking to you you’re smarter than this. So [sic] I guess we’ll see.”

“you [sic] might want to tell your amigo Rudy to get a job, I just faxed maricopa [sic] paperwork to stanislaus sheriff department [sic].”

“Calling [sic] me will not help you. Park the car [sic] tell Rudy to warm up the Impala.“

“[I]t upsets me a smart girl like you is iwith [sic] a guy is [sic] doing nothing at 11:30 a.m. but when he doesn’t have a free car he’ll leave.”

“[M]ake sure and have the [sic] deputy call me, nad [sic] show him your DL too.”

“[T]he guy in [G]eorgia has been removed from the case. Now its my entire staff versus you.”

As for how the Court handled the disposition of the case, watch the summary from “Textual Relations,” presented at the Paraben Forensic Innovation Conference.

The Low Speed Chase that Gives Us Admissible Cell Phone Photo after a Warrantless Search

A police officer stopped a car driving with a flat tire, cracked windshield and its bright lights on.  People v. Gorostiza, 2009 Cal. App. Unpub. Lexis 9494 at *1.  

The passengers might have been hoping, “There is nothing to see here.” 

After stopping the car with the Defendant and two passengers, the Defendant drove away from the stopping officer while the police officer opened the car door.  As one can suspect, the police officer engaged in a low speed chase.

The Defendant again tried to start another low speed chase after being stopped a second time, but the car would not re-start.  One passenger escaped on foot after the car was stopped.  Gorostiza, at *2.  The owner of the car, one of the passengers but not the driver, gave consent to search the car. 

Search Incident of Arrest of Cell Phone Photos

The police found a loaded pistol-grip 12-shot gun during the search of the car.  Two cell phones were also found, one with a dead battery and the other in the driver’s area. Gorostiza, at *3.

The police officer opened the working cell phone and saw a photo that resembled the Defendant holding the shotgun found in the car.  Gorostiza, at *3. 

The police officer accessed the cell phone menu and opened the “My Albums” folder.  Id.   The police officer found two additional photos of the Defendant holding the gun.  Id.

The Defendant claimed the photos were not of him and he was being framed when questioned on the cell phone photos. Gorostiza, at *3-4.


Investigation and Search of the Cell Phone

Another investigating police officer sent the cell phone photos via MSS message to another investigating officer’s email.  The cell phone photos were printed and used at the criminal trial of the Defendant.  Gorostiza, at *5. 

Where the Cell Phone Photos Properly Admitted?

The Defendant tried to suppress the cell phone photos, claiming an improper search incident of arrest because the cell phone was “not a container” or part of a person.  Gorostiza, at *5.   The Defense further argued the cell phone deserved “heighten protection.”  Gorostiza, at *5.

The Court, as a preliminary matter, found the Defendant had a reasonable expectation of privacy in one of the cell phones because the police officer had knowledge the phone belonged to the Defendant.  Gorostiza, at *6-7.

The Court found the search of the car that found the shotgun was proper, because the police officer had permission to search the car by the owner. Gorostiza, at *7. 

The cell phone was found in a leather case, which at the time had unknown contents.  The image of the Defendant holding the gun was visible once removed from the leather case.  Gorostiza, at *7.

The Court held that the photo that was seen on the cell phone screen was a proper search, because it was found in a “closed container” during a valid search after the owner gave permission to search. Gorostiza, at *8.

Dodging the Bigger Issue

The bigger issue was whether the police officer conducted a proper search of the cell phone by exploring the menu items and additional photos in a sub-folder.  Did the consensual search of the car allow the police officer to search for additional photos on the phone? 

The Court dodged these issues, noting that two additional photos were very similar to the first photo found pursuant to a valid search.  The Court stated:

Because the admission of the additional photographs seized during the further search of the cell phone was not prejudicial, we need not determine additional questions raised by the defendant in his argument. For example, we need not determine if the consent extended to a search of the electronic contents of the telephone, we need not determine if cell phones are subject to heightened privacy interests, and we need not determine if Preis’s [the police officer] knowledge that the telephone belonged to defendant should have curtailed his search of the interior of the cell phone. Gorostiza, at *13.

Bow Tie Thoughts

The issue of whether a cell phone has heightened protection during a search will one day be decided.  More importantly, whether searching the menu features of a cell phone would be a valid search in similar facts.  This case may have addressed these issues if the photos had been different, such as firing the gun in a different location, or perhaps committing an act of vandalism or other crime. 

I am very glad this is an unpublished opinion because of the preservation methods used by the police. The collection was potentially problematic because the State used no forensic or defensible tools to collect the cell phone photos.  While the State’s actions were likely acceptable in sending the photos to a police officer, it carried risk. 

The collection methodology of sending a MSS message of the photo from the defendant’s phone to an investigating officer can open an ugly can of worms of destroying data, which could cause a mistrial or severely undermine a prosecutor’s case.  It could provide an entertaining cross-examination by a defense attorney on what procedures were undertaken to ensure the defensibility of the evidence, especially if the defense offered a collection expert to discuss proper procedures to preserve cell phone evidence. 

Products from Paraben Corporation are specifically designed for forensically imaging cell phone contents [Bow Tie Note: D4 is business partners with Paraben Corporation].  These products are currently being used by electronic discovery specialists, law enforcement, and even the US military in Iraq imaging the cell phones of insurgents who use cell phones to trigger road side bombs.  Other products are also on the market.  When proper tools are commercially available, why risk destroying key evidence by sending text messages from the defendant’s phone during an investigation?

Bad Romance e-Discovery Style: Text Messages in an Ugly Break Up

Discussion of In re C. C., 2009 Cal. App. LEXIS 1715 (Cal. App. 3d Dist. Oct. 27, 2009) at the Paraben Forensic Innovation Conference.

The case involved a bad high school break-up, where the teenage boy sent vulgar text messages venting anger to ex-girlfriend.

The Juvenile Court took words from the text messages out of contents and found texts were 1) threatening and 2) obscene.

The Court on appeal held text messages were neither threatening nor obscene.  The Court found the texts did not threaten any physical harm, as required by statute. Furthermore, the text messages in context did not qualify as obscene. As such, the case was reversed for lack of substantial evidence.

Bribing Witnesses with Text Messages, Cell Phones and Fake Email Accounts

Sometimes there are fact patterns that surprise you how far we have come with technology and the foolishness of people. 

In People v. McInnis, the Defendant was convicted of attempted witness bribery.  The Defendant attempted to keep witnesses from testifying against the Defendant’s nephew, in the nephew’s trial for robbery and kidnapping.  People v. McInnis, 2009 Cal. App. Unpub. LEXIS 9046 (California Unpublished Opinions 2009).

The basis of the Defendant’s appeal was based on alleged “outrageous governmental conduct” by a police investigating officer. 

The Court upheld the conviction. 

The Bribe

One of the victims in the robbery and kidnapping case received the following letter with a cell phone number to call:

“The purpose of this letter and its contents is to compensate you for your initial loss that occurred as a result of the robbery. I believe you have at least 1 Thousand reasons to be compensated for your pain and suffering. However, I feel that because you are the true victim in this crime, you deserve much more compensation for your pain and suffering. While it’s obvious that the defendants don’t have the ability to adequately compensate you, I do have the ability to do so on their behalf.”

“Obviously this correspondence and agreement has to be kept confidential and not disclosed or shared with the District Attorney or Police. . . . Remember the District Attorney works for the people (you & me) and you have every right to tell the DA you don’t want to testify and he can’t force or threaten you to.” McInnis, at *2-3.

The letter ended with “there are at least 25 thousand reasons why you would like to immediately settle the case in a civil manner instead of being a witness in a criminal court.” McInnis, at *3.

The victim turned over the letter to the authorities who launched an investigation.

Other letters were sent to the two victims offering $50,000 to settle the criminal suit against the Defendant’s nephew.  McInnis, at *5 (which should send ethics lawyers into orbit).

The investigating police officer left multiple phone messages with the number on the letter. A text message was sent to the investigating officer saying, “Leave me a message with your questions. I am going to send the money, I swear.”  McInnis, at *6.

Tracking Down a Cell Phone

The police investigation in tracking down the Defendant’s cell phone was a case study of how far we have come with technology.

The police officer was able to trace the exact sale date of the cell phone, the cell phone carrier (Virgin Mobile), the fake purchase name (Joe Gift), the store it was purchased from (Radio Shack), and that it was activated at a FedEx Kinko’s near the store where the Defendant purchased the phone.  McInnis, at *6-7.

Virgin Mobile indicated the specific time, down to the minute, the cell phone number had been activated, including the fake name used for the Yahoo! email address.  McInnis, at *7.

The police officer used “Yahoo! Emergency Disclosure Request Form” to determine the identity of the Yahoo! subscriber. McInnis, at *7.

The investigation showed the IP address where the account was activated was a FedEx Kinko’s in Los Gatos, California.  McInnis, at *7.  From there, the police were able to review the store security cameras and identify the Defendant later in Court. McInnis, at *7.

“Outrageous Conduct”

The “outrageous conduct” was the police officer overstating the threat against the victims on  “Yahoo! Emergency Disclosure Request Form.”  While the officer exaggerated the danger, the Court found this was not shocking conduct that rose to the level of “outrageous conduct.”  McInnis, at *21-21. 

What is Interesting about This Case…

Tracking down a suspect by IP addresses, fake email names and security video sounds like something out of “24.” These electronic finger prints are all markers of electronically stored information.  Just as civil litigation is dealing with “forms of production,” criminal law have also adopted to the Digital Age.

Attorney Client Text Messages or Texting & Depositions Don’t Mix

A child was injured at an Old Navy store (a subsidiary of the Gap) on a clothing rack, and naturally, a lawsuit followed in Federal Court based on Diversity Jurisdiction. Wei Ngai v. Old Navy, 2009 U.S. Dist. LEXIS 67117 (D.N.J. July 31, 2009).

The Plaintiffs deposed the Gap’s General Liability Claims Manager via video deposition on the chain of custody of the clothing rack. Ngai, 2.

The witness was in Sacramento, California, Defense attorneys in Fort Lee, New Jersey and Pro Hac Vice in Southfield, Michigan.  Ngai, 2.

The deponent and their Pro Hac Vice attorney were only visible from the chest up and their hands were not visible.  Ngai, 2.

However, the Pro Hac Vice attorney and the deponent had very busy hands texting each other.  Before the deposition, the two sent 11 text messages between themselves.  Ngai, 4.

TextingDuring the one hour and twelve minute deposition, the attorney and client exchanged 5 more text messages.  Ngai, 3.  Below is the timing of the messages: 

PHV counsel Deponent 3:05:26 PM
PHV counsel Deponent 3:24:18 PM
PHV counsel Deponent 3:26:30 PM
Deponent PHV counsel 3:28:38 PM
Deponent PHV counsel 3:28:54 PM

Ngai, 4.

Then there was perhaps one of the worst sending errors text message history: The Pro Hac Vice attorney sent a text to the PLAINTIFF attorney saying, “[you] [are] doing fine.”  Ngai, 2. 

The Plaintiff’s attorney suspected shenanigans, requested the defending attorney preserve his text messages from the deposition.  Ngai, 2.

As one would expect, the Pro Hac Vice attorney claimed the text messages were all sent during a break.  However, the Court stated the record showed that only one break was taken, at an unknown time.  Ngai, 5.  Moreover, the NJ attorneys reported that the deponent was visible the entire deposition, minus the deponent and NJ attorneys going off camera to phone the Pro Hac Vice attorney.  Ngai, 5.

The Fallout Begins…

Pro Hac Vice attorney informed the court by letter of the text message incident and claimed the text messages were protected by the attorney-client privilege.  Ngai, 6.  Deciding to fall on his own sword, the Pro Hac Vice attorney attempted to withdraw from representing the Defendant.  Ngai, 6.

The Plaintiff opposed the Pro Hac Vice attorney’s withdrawal, claiming the withdrawal would delay the trial. Ngai, 6.  The Plaintiff requested all non-attorney-client privileged documents that supported the Pro Hac Vice attorney’s withdrawal.  Ngai, 6. 

The Court granted the withdrawal and ordered the Defendant to either produce the text message attachment provided to the Court or explain why the Attorney-Client privilege should not be pierced.  Ngai, 6-7.

Privileged Text Messages?

 The Defendant argued against producing the transcript of the text messages because:

(1) The communications are protected by the attorney-client privilege and work product rule;

(2) The crime fraud exception does not apply because the communications were not in furtherance of a crime;

(3) The “at issue” exception does not apply because the communications do not refer to the client’s state of mind or any other relevant issue in the case;

(4) There is no Rule of Professional Responsibility that compels this discovery; (5) the communications have no effect on the case; and

(6) The court rules provide that inadvertent disclosures must be returned to the sender. Ngai, 7.

The Plaintiff in turned argued that the text messages were not protected by the Attorney-Client Privilege.  Ngai, 7-8.

New Jersey Attorney-Client Privilege Standards

The attorney-client privilege statute states “communications between lawyer and his client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (a) to refuse to disclose any such communication, and (b) to prevent his lawyer from disclosing it . . . .” Ngai, 8-9, citing N.J.S.A. 2A:84A-20.

One key test for sending an Attorney-Client communication is between the attorney and their client for legal advice with the expectation that its content remain confidential.” Ngai, 9-10, citations omitted.

The disclosure of these communications “to or in the presence of third-parties destroys the confidential nature of the communication and therefore such communications are not privileged.” Ngai, 10, referencing Aysseh v. Lawn, 186 N.J. Super. 218, 222, 452 A.2d 213 (Ch. Div. 1982).

Just When Were the Communications Made?

The Court held the text messages made BEFORE the deposition were privileged, which the possible exception of the last message, which the Court did not explain in depth.  Ngai, 11-12.

The Court explained the pre-deposition text messages related to the upcoming deposition, including “words of encouragement,” that attorney and client would have before a legal proceeding.  The Court characterized these text messages as furthering the client’s legal interest and were thusly protected.  Ngai, 11-12.

Texting During the Deposition or “No Note Passing”

The text messages sent during the deposition were not privileged.  Ngai, 12.

Federal Rule of Civil Procedure Rule 30(c) states that “depositions are to be conducted in the same manner as trial examination.”  Ngai, 12.

Rule 30 does not allow a lawyer and witness to have a discussion during trial or deposition testimony because, “once a deposition begins, the right to counsel is somewhat tempered by the underlying goal of our discovery rules: getting to the truth.”  Ngai, 13. 

The Court stated, “The goal of obtaining the facts of a case is defeated when the lawyer and not the witness is answering questions or influencing the answers to them.”  Ngai, 13. 

During a deposition if there is an “off-the record” discussion other than discussing the assertion of a privilege, the exchange is not privileged and “deposing attorney is [] entitled to inquire about the content thereof.”  Ngai, 13. 

passing notes in classThe Court stated the Pro Hac Vice attorney violated Federal Rule of Civil Procedure Rule 30 by texting during the deposition.  Ngai, 14.  The Court equated the conduct with passing notes to the client that included instructions “intended to influence the fact finding goal of the deposition process.” Ngai, 15.

The Court found no “it was on a break” defense for the text messages.  Ngai, 15-16.  A deposing attorney may question a deponent to determine if any witness coaching occurred.  Ngai, 16.  Additionally, Rule 30 only allows discussions pertaining to privileged issues.  Ngai, 16.  Finally, there was no evidence the text messages were actually sent during a break.  Ngai, 16.

Bow Tie Thoughts

If it had not been for the Pro Hac Vice attorney sending a text to the Plaintiff’s attorney, no one would have known of this impermissible (and ethically questionable for arguably witness coaching) conduct.  It will be a sad day for our system if deposing attorneys need to include a “no texting” provision to deposition admonitions.

Admissibility of Text Messages: Challenging Authenticity

A criminal defendant appealing his conviction on ineffective counsel and insufficient evidence to support his convictions challenged text message evidence.  State v. Loye, 2009 Minn. App. Unpub. LEXIS 660, 1 (Minn. Ct. App. 2009).

The Defendant’s key argument at trial was challenging his victim’s credibility as the only witness to his attack upon her.  Loye, 2. Judging by his conviction, this obviously did not work out well for him. 

Texting EvidenceThe Defendant argued the court erred in excluding text messages the victim sent after the assault.  The Defendant claimed these messages were relevant and were not barred as hearsay.  Loye, 3.    

The Court found no error.  Loye, 3.

Trial Procedure & Rules of Evidence

The trial court did allow some text message evidence that the victim “loved” the Defendant.  Loye, 3. 

Instead of offering text messages acquired from a cell phone with a tool such as Paraben, a collection expert who could explain collection methodology or a subpoena to a cell phone service provider to produce text messages, the Defense counsel offered a handwritten transcript of the text messages.  Loye, 4.

There was no one offered to authenticate this handwritten text message transcript.  The Prosecution objected to introducing the trial exhibit.  Loye, 3. 

The Defense successfully used the handwritten transcript to refresh the victim’s recollection and read into the record.  Loye, 4.  The handwritten notes were only admitted as a court exhibit and never went to the jury.

Flashbacks to Trial Advocacy 

Ready to RuleTrial Advocacy and Evidence professors teach law students that “authenticity is a precondition to the admissibility of evidence.” Loye, 4.  

The Court found that the Defendants failed to lay any foundation with the handwritten text message transcript, thus the trial court properly excluded the evidence.  Loye, 4.  This might have been different if the Defendant had offered either the cell phone or a transcript from the cell phone service provider.


“If I Can’t Have It, No One Can”

The Defense tried arguing in the alternative that no text message evidence should have been admitted.  Loye, 4-5.  The Defense claimed that since the handwritten transcript was read to the jury to refresh the victim’s recollection, “The court erred by letting defense counsel cross-examine the alleged victim with the evidence without an accurate record that could be entered into evidence.”  Loye, 5.

Claiming prejudice because a jury has to rely on their own memories instead of text messages did not fly with the Court.  The Court noted jurors often rely on testimony and there was no explaination how this was prejudicial.  Loye, 5.

Admissibility Battles Can Be Avoided

Defense counsel could have avoided their inability to authenticate text messages with better case planning.  A subpoena could have been sent to the cell phone service provider on the victim’s text messages over the relevant time period.  A collection examiner could have defensibly imaged the victim’s (or the Defendant’s) text messages.  Photos could have been taken of the phone itself with the text messages.  However, none of those things happened.

Measure for Measure: Sexting, District Attorneys and Restraining Orders

Parenting has never been easy.  Since cell phones starting having cameras, parents have had to talk to their teenage children about the dangers of “sexting.” For those who have never heard of this practice, it is taking photos of a sexual nature and sending them via text message.  There is no shortage of cases with youth under 18 being charged as sex offenders for this practice. 

The proper legal deterrent for “sexting” is the subject of debate.  Some people think charging 15 year olds as felony sex offenders is the appropriate deterrent, with serious ramifications on college selection, job applications and just moving for at least a decade.  Some take a “do nothing” approach.  Others are looking for a middle ground.  It is only a matter of time before state legislatures take this issue up to determine the appropriate legal deterrent for “sexting.” 

The case Miiller v. Skumanick, 2009 U.S. Dist. LEXIS 27275 (M.D. Pa. Mar. 30, 2009) is the story of a temporary restraining order being issued against a District Attorney from charging multiple teenage girls for felony child pornography from texting.  A preliminary injunction hearing is schedule for June 2, 2009.

Thoughts on being a District Attorney

To be fair to District Attorneys, I think the DA in this case is the exception and not the norm.   Being a DA has to be hard.  The job can be demanding and stressful in protecting communities from crime.  I remember a DA joking to us in law school that new all DA’s get a concealed weapons permit and a bullet proof vest. 

Many states have also adopted the Model Rules of Professional Conduct Rule 3.8 for prosecutors, which states in relevant part:

Rule 3.8 Special Responsibilities Of A Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…

Factual Overview: Threat of Prosecution from the District Attorney

The District Attorney in Miiller sent letters to the parents of 20-some students who had been identified in cell phone photos.  Three of the students (later Plaintiffs) had photos of themselves in bras and the other in a swim suit. 

The DA’s letter promised child pornography charges would be dropped against the youth if they completed a 6 to 9 month “re-education” program (which was reduced to 5 weeks) and drug testing.  Those who did not attend the “re-education” program and drug testing would be charged as sex offenders.  Miiller, 4. 

The District Attorney held a meeting at the Wyoming County Courthouse with everyone who received the letter.  This meeting consisted of a threat to prosecute the teenage girls in the photos unless they submitted to 1) probation, 2) paid a $100 program fee and 3) completed the “re-education” program. 

The “re-education” program was to instruct the girls on their inappropriate behavior and to “gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages,” and “identify non-traditional societal and job roles.” They were also required to write a paper on their actions and how they were wrong.  Miiller, 5-6. 

“These are the rules. If you don’t like them, too bad”

Parents understandably questioned the District Attorney on his methods.  One of the girls at issue had photos of herself in a bathing suit.  When questioned by the father how swim suit photos were child pornography, the DA explained the youth had posed “provocatively.”  When questioned on who decided what was “provocative” the DA told the father, “[T]hese are the rules. If you don’t like them, too bad.”  Miiller, 5.  The District Attorney also told the questioning parents he could charge their children with child pornography during the meeting, as obvious leverage for the parents and youth to consent to the “re-education” program.  Id.

When the parents of the other Plaintiff challenged the District Attorney’s child pornography definition, the DA claimed the youth had no right to a jury trial in Juvenile Court, even with felony child pornography charges. 

The Civil Lawsuit (Or, this is the US Constitution, if you don’t like it, too bad)

The parents of the three Plaintiffs did not give in to the District Attorney’s threatened prosecution of their children.  The Plaintiffs brought a 1983 action base on 1) retaliation in violation of plaintiffs’ First Amendment right to free expression, because the photographs did not violate any obscenity law; 2) retaliation in violation of plaintiffs’ First Amendment right to be free from compelled expression, specifically having to write a paper about their actions; 3) retaliation against the parents for exercising their Fourteenth Amendment substantive due process right as parents to direct their children’s upbringing, as evidenced by the “re-education” program material.  Miiller, 10-11. 

The Temporary Restraining Order

A temporary restraining order is an “extraordinary remedy” that requires a Court to evaluate: 

(1) Whether the moving party has shown a reasonable probability of success on the merits;

(2) Whether the moving party will be irreparably injured by denial of the relief;

(3) Whether granting preliminary relief will result in even greater harm to the nonmoving party; and

(4) Whether granting the preliminary relief will be in the public interest. Miller, 13, citing Crissman v. Dover Downs Entertainment Inc., 239 F.3d 357, 364 (3d Cir.2001).

The Plaintiffs met all of the requirements for a retraining order against the District Attorney.  Moreover, the Court outlined the state law definition of “prohibited sexual act,” which did not include “provocative” poses.  Miiller, 25-26.  One can wonder if the District Attorney over-stepped his ethical duties as a prosecutor, if he was threatening prosecution not supported by probable cause, let alone advising the accused youth of their right to counsel. 

In reviewing the sub-requirement that the Plaintiffs’ Constitutionally protected activity caused the retaliation, the Court noted that the District Attorney’s threat to charge the youth with felony child pornography was “not a genuine attempt to enforce the law, but instead an attempt to force the minor plaintiffs to participate in the education program.” Additionally, the continued threat of prosecution for not participating in the “re-education program” indicated that the charges were “retaliation for their refusal to engage in compelled speech.”  Miller, 24-25.

What is the Appropriate Deterrent?

The actions of the District Attorney in Miiller were extreme.  It will be interesting to see if the preliminary injunction is granted on the June 2, 2009 hearing.  Judging by the tone of the Court Order, I would think so. 

Cases such as Miiller may prompt state legislatures to determine the appropriate punishment for a teenager sending or receiving sexually suggestive photos from other teenagers.  Some states may find the current child pornography laws are sufficient, because the threat of having to register as a sex offender is a high deterrent.  Other states may try finding a lessor punishment. 

In the meantime, parents should have very frank discussions with their children about responsibility and consequences.