Regardless, the trial court found that the text messages were sufficiently authenticated to be admissible. The court reasoned that doubts as to the identity of the sender or recipient went to the weight of the evidence, rather than to its admissibility. Ms. Koch was found guilty as an accomplice on both the possession and possession with intent to deliver charges. She appealed these convictions.
On appeal, the Superior Court reversed the conviction and ordered a new trial. The Court specifically noted that text messages are subject to the same requirements for authenticity, found in Pa. R.E. 901, as non-electronic documents generally. The text messages in questions were not properly authenticated and should not have been admitted:
Authentication is a prerequisite to admissibility. The detective’s description of how he transcribed the text messages, together with his representation that the transcription was an accurate reproduction of the text messages on [Ms. Koch’s] cellular phone, is insufficient for purposes of authentication where the Commonwealth concedes that Appellant did not author all of the text messages on her phone. . . . [A]uthentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.
Id. The Court also found that the statements were inadmissible hearsay and that there were no exceptions under the Pennsylvania Rules of evidence that would allow their admission.
In the vast majority of cases, both civil and criminal, a party normally admits to sending text messages or e-mails shortly after or even during the relevant events. However, without such an admission, the Court seems to have placed the burden squarely on the party attempting to admit them into evidence to have a solid foundation that links the text message with the person who is alleged to have made it.
This case also raises questions regarding the retention of text messages. If the Courts are going to treat text messages as documents for evidentiary purposes, may the Courts in the future require persons and companies to retain text messages if they are somehow business related? In the future, will the lack of a text message create a negative inference? If so, while it is incredibly convenient, should text messaging ever be used in a business setting, however innocuous the text may seem at the time? Given the leaps and bounds our communication technology has taken, these are issues that certainly will be presented to our Courts in the very near future.