When confronted with an issue of first impression – how to authenticate text messages – the Colorado Court of Appeals chose not to reinvent the wheel. Rather, it wisely borrowed from the Federal Rule of Evidence (“FRE”) 901.
In People v Heisler, the defendant and victim had been romantically involved. They remained in touch after they broke up but eventually, the victim began dating another person and requested Heisler stop texting her.
Heisler ignored the victim’s request and continued – with increasing frequency – to text and write letters to the victim, who did not respond or reciprocate. Approximately nine months later, uninvited and unannounced, Heisler traveled from his home in Florida to the victim’s doorstep in Colorado. The victim called the police and Heisler was charged with felony stalking and harassment.
At trial, the court admitted into evidence Heisler’s text messages to the victim. Ultimately, Heisler was found guilty of harassment but acquitted of the stalking charge. Heisler appealed, arguing the court’s decision to admit his text messages was error as the text messages were not properly authenticated under CRE 901(a).*
The Two-Step Process
In upholding the trial court’s decision to admit into evidence the text messages, the appellate court noted the burden to authenticate evidence is low, and requires a prima facie showing only. Then, after considering a two-leveled approach used to authenticate emails and social media posts,** the appellate court propounded the following two-step process to authenticate text messages:
Step 1: A witness with personal knowledge must testify that printouts of the text messages accurately reflect the content of the text messages; and
Step 2: A witness with personal knowledge must provide testimony establishing the identity of the purported sender of the text message.
Seems simple, right? Not really. How, for example, do you establish the “identity of the purported sender?” Fortunately, the appellate court identified four methods and held the proponent must establish at least two of the four methods:
(a) the phone number was assigned to or associated with the purported sender;
(b) the substance of the text message(s) was recognizable as being from the purported sender;
(c) the purported sender responded to an exchange in such a way as to indicate circumstantially that he or she was in fact the author of the communication; and/or
(d) any other corroborative evidence under the circumstances.
In Heisler, the victim satisfied Step 1 when she testified she recognized the pictures of the text messages and that they were a fair and accurate depiction of the texts she personally received. The victim satisfied Step 2(a) when she testified she recognized the phone number as belonging to Heisler because that was the number she used to communicate with him. Finally, the victim satisfied Step 2(b) when she testified she recognized the content of the text messages as being from Heisler.
Interestingly, Heisler did not object that the text messages were not his or that the printouts were not accurate. Rather, Heisler objected to the text messages because the victim had deleted her responses to his messages.
The appellate court was unpersuaded, stating that prosecution established the printouts accurately reflected the content of the messages the victim received and that Heisler authored the text messages. The court further reasoned that the text messages were admitted as evidence of texts the victim received from Heisler, not as evidence of a conversation between the two. Thus, the text messages were properly authenticated.
Text messages, like any other evidence, must be authenticated to be properly admitted into evidence. Now, practitioners in Colorado state court, like those in the federal courts and countless other state courts, can rest soundly knowing that the process of authenticating text messages involves a fairly straightforward two-step process.
* CRE 901(a) requires that the evidence be sufficiently authenticated by the proponent and authentication “is satisfied by evidence sufficient to support a finding that the [evidence] in question is what its proponent claims [it to be].” FRE 901(a) states the same.
** Under CRE 901, an e-mail and a social media post may be authenticated (1) through the testimony of a witness with personal knowledge that the e-mail is what it is claimed to be or (2) “through consideration of distinctive characteristics shown by an examination of [the] contents and substance” of the e-mail under the circumstances of the case (see People v Bernard, People v Glover).
Thank you to second year associate, Jaclyn Ruggirello in the Firm’s Uniondale office, for her research assistance related to today’s blog.