The increasing use of electronic communications, from Facebook to text messaging, has challenged our courts to determine what is admissible evidence in family law hearings. The Pennsylvania Superior Court has recently considered that issue in a criminal proceeding where text messages were introduced to prove the defendant’s intent to deliver illicit drugs in his possession. In Com. v. Koch, 2011 Pa.Super. 201 (September 16, 2011), the Superior Court acknowledged that text messages and other forms of electronic communications are not inherently unreliable, despite their relative anonymity and the difficulty in connecting them with their author. Yet, the litigant who offers such evidence must prove that they are authentic and overcome hearsay objections. Usually, this must be proven through circumstantial evidence.
It is not enough to prove that a text message was transmitted from a particular phone number, because anyone could have been using that phone, unless the circumstances or the message itself prove that the phone’s owner was the actual author of the message. A text message might contain factual information or references that are unique to the author. Or, perhaps it can be established that the message was transmitted while the phone was in the owner’s possession. The same standard applies to emails and instant messages. In addition to proving that the message was transmitted from the owner’s account, it must be proven through circumstances that the owner of the account was the author of this particular message. If the authenticity of the message can be proven, the text message or email can be used as evidence.
In the Koch case, the police found the defendant’s mobile phone in his home and reviewed his outgoing text messages, some of which were incomplete or deleted. The police offered no proof to show that the phone’s owner was the author of the messages, some of which referenced the defendant in the third person. There was also evidence that some persons other than Defendant sometimes used that mobile phone. The Superior Court in Koch held that the text messages should not have been admitted into evidence in the criminal proceeding until they were properly authenticated. The Court reversed the conviction for a new trial.