Tuesday, October 25, 2011

ARTICLE: U NEED 2 AUTHENTICATE TMs

U NEED 2 AUTHENTICATE TMs
Criminal court decision provides guidance on authenticating electronic information

By

Daniel E. Cummins





Criminal court matters are not often referenced in this civil litigation column but the Pennsylvania Superior Court has handed down a decision in a criminal case that could have impact in personal injury lawsuits.

The rapidly ever-changing internet world has brought on a new issue to be considered in the courtroom. Now that most communications are arguably completed electronically, the novel question of how to authenticate electronic messages, along with information on social media sites, has come to the forefront.

As noted below, the Pennsylvania Superior Court has faced down this issue by simply applying the rules of authentication that seem to have been in place forever in terms of paper-written evidence.

A case of first impression

In a recent criminal court case, described as a case of first impression, the Pennsylvania Superior Court ruled that text messages were not admissible in court unless they were properly authenticated, i.e. unless there is evidence presented that the messages did indeed come from the alleged sender.

The case of Commonwealth v. Koch, 2011 WL 4336634 2011 PA Super 201, No. 1669 MDA 2010 (Pa.Super. Sept. 16, 2011 Bowes, Freedburg, Colville, JJ)(Opinion by Bowes, J.) involved an appeal by the defendant from a Cumberland County conviction for drug offenses.

The defendant’s cell phone had been seized by the police during a search warrant and the text messages discovered on the phone were transcribed, offered at trial by the prosecutor, and allowed in by the trial court judge over the defendant’s objections as to hearsay and authentication.

The defendant asserted that there was no evidence to establish that she had sent any of the drug-related texts. She also asserted that it had not been established that the drug-related text received on the phone were directed to her as there was evidence that the defendant’s cell phone was also allegedly being used by someone else at the time.

On appeal, the Superior Court found that the text messages were not properly authenticated and, therefore, should not have been admitted. The criminal conviction was overturned.

As further support for its ruling, the court pointed to the prior prescient Pennsylvania Superior Court decision in In the Interest of F.P. A Minor, 878 A.2d 91 (Pa.Super. 2005), in which the court dealt with the authtentication of evidence of instant messages.

In that case, the Superior Court rejected the argument that emails or text messages are inherently unreliable because of their relative anonymity and the sometimes difficulty attendant with connecting a message with its author.

The court in F.P. noted that these issues are no different from letters or other documents that can be forged or denied by the alleged writer. The court also believed that electronic messages could be properly authenticated within the framework set forth under Pa.R.E. 901 on a case-by-case basis to determine if there has been an adequate foundation laid out as to the document’s relevance and authenticity.

In the more recent decision by the Superior Court in the case of Commonwealth v. Koch, it was also noted that “electronic writings typically show their source, so they can be authenticated by contents in the same way a communication by postal mail can be authenticated.”

The Commonwealth v. Koch court also emphasized that, while text messages and emails can almost always be electronically traced back to their source cell phone or computer, the sender of such messages is not always thereby automatically identified. Particular cell phones and computers can arguably be utilized by anyone at anytime.

As such, the Superior Court additionally held that there must also be “[c]ircumstantial evidence, which tends to corroborate the identity of the sender,” as well before an electronic message may be authenticated and admitted.

Impact in civil matters

This emerging evidentiary issue could obviously also come into play in civil litigation matters not only with respect to authenticating text messages but also tweets, emails, and commentary and photos on social media sites such as Facebook, MySpace, Linkedin and Google Plus.

So how do you authenticate such items? Just like you would with any other “writing” or documentary evidence. Don’t be distracted by the fact that this issue involves a new form of evidence—the same Pennsylvania Rules of Evidence apply.

Under Pennsylvania Rule of Evidence 901, pertaining to authentication, “[t]he required degree of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.” See Pa.R.E. 901(a).

Pennsylvania Rule of Evidence 902(b) lists examples of methods to establish authentication. Evidence may be authenticated:

-by testimony from a witness with knowledge that the matter is what it is claimed to be

-with evidence establishing distinctive characteristics of the document to confirm its authenticity (perhaps the phrasing in the text will match how the sender speaks, etc.)

-by other relevant, circumstantial evidence to show that the writing is what the proponent purports it to be (i.e. references to related places, things, or names in the text message).

As the Pennsylvania and Federal Rules of Evidence largely mirror each other, it can be anticipated that the analysis for the authentication of electronic messages would be similar in the federal court system.

Conclusion

Therefore, these different forms of electronic evidence can be authenticated—you just need to know how. If you are ever faced with the issue of the authenticity of an email, text message, or information from a social media site, the Commonwealth v. Koch case is the one to consult along with Pa.R.E. 901.

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