In a pair of recent decisions out of Florida’s Fourth District Court of Appeal the mechanics of getting text messages into evidence, specifically how to authenticate them, was explored with differing results. In a digital world where most communications are transmitted via text messages or emails mastering these mechanics is now a required trial lawyer core skill.
In Walker v. Harley-Anderson, the appellate court reversed the admission of multiple text messages in a stalking injunction case. The alleged victim claimed that the trial court could authenticate the text messages exclusively by their content. “Authentication by content” is a recognized method of authentication if sufficient indicia of reliability are present. In Walker there simply was not enough to infer that the text messages were authentic based solely on content. The court observed that the phone number reflected in the text messages did not match the alleged stalker’s phone numbers. There was reference to the pronoun “we” rather than the singular “I” leaving the identity of the sender in doubt. Moreover, the first portion of the text messages did not match the latter part in format.
An entirely different result occurred in State v. Torres, another “authentication by content” case. At issue were screen shots of text messages sent by an alleged assailant and taken by the minor victim several years before prosecution was initiated. Unlike Walker there were contextual badges that made authentication by content workable e.g. the screen name used by the assailant message sender was his family nickname. Additionally, there was reference in the messages to information known only by the young victim and defendant.
As both of these cases point out exhibit authentication can be accomplished in a variety of ways and admissibility depends entirely on the facts. Direct evidence i.e. an admission by the sender or, lacking that, eyewitness testimony that the sender sent the text message, is usually best.
How does this topic fit into the broader picture of evidence law? Authentication is one of the core components of admitting exhibits into evidence. We’ve developed an admissibility logic relevant to any type of evidence, text messages and emails included. That logic looks at the evidence sequentially:
- First, one must consider the purpose of admitting an exhibit. Is it relevant to the issues pled in the case or is it an accepted form of impeaching (or rehabilitating) a witness’ credibility?
- Notwithstanding its relevance, is the exhibit so prejudicial that it shouldn’t be admitted?
- Is the exhibit privileged under any accepted privilege doctrine?
- Is the exhibit authentic? This was the issue faced in the Walker and Torres cases.
- Is the exhibit complete? An exhibit might be excluded for incompleteness under Federal Rule of Evidence 106 or Florida Statute 90.108.
- Is the exhibit subject to the Best Evidence Rule? Be sure you’re familiar with Federal Rules of Evidence 1001-1005 and Florida Statute 90.951-955.
- Is the exhibit barred by the hearsay rule or is it admissible as a hearsay exception or because it is not hearsay in the first place?
Mastery of evidence law – in this case the admissibility of exhibits – is foundational to building a trial-oriented practice. In a digital world where communications are “documented” in text and email chains it’s a critical to know what’s necessary to lay the predicate to authenticate such evidence.
