Monday, January 12, 2015

Pennsylvania Supreme Court Splits on Authentication of Text Messages Ruling [In Criminal Court Context]

Tort Talkers may recall prior posts and articles here on the case of Commonwealth v. Koch, a criminal court decision on the issue of authentication of text messages in a criminal court case.  That case was noted to have possible implications on the authentication of electronic forms of evidence in the civil litigation context.  [For more, please go to and type "Koch" into the Search Box near the upper right hand corner of the blog to bring up the prior posts on this case/issue].

A December 30, 2014 evenly split 3-3 decision by the Pennsylvania Supreme Court in the case of Commonwealth v. Koch, No. 45 MAP 2012 (Pa. 2014) means the Superior Court's decision applying the authentication law under Pa.R.E. 901 applies to electronic evidence and that circumstantial evidence can be utilized to meet the test.

While another split decision by the Commonwealth's highest court on an issue of importance is disappointing, that decision, along with the Superior Court's decision in the same case, suggests that the same old evidentiary Rules will be held to apply to this new form of evidence.  Such an analysis would likely be extended to Facebook profile evidence and other social media evidence.

To view the Per Curiam Affirmance by the Evenly Split Supreme Court, click HERE.

To view the Concurring Opinion by Chief Justice Castille, click HERE.

To view the Dissenting Opinion by Justice Saylor, click HERE.

To view the Dissenting Opinion by Justice Eakin, click HERE.

Source:  Article by Lizzy McLellan and Max Mitchell, "Supreme Court Splits on Privacy and Authentication Tech Issues."  The Legal Intelligencer (Jan. 13, 2015).

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