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Will Text Messages Be Allowed as Evidence in Pennsylvania Criminal Trials?

June 20, 2012

On May 18, 2012, Ben Present of The Legal Intelligencer wrote an article called “State Supreme Court to Address Admissibility of Text Messages” which, as its title suggests, explains the circumstance surrounding what will surely be a noteworthy precedent regarding whether or not “unauthenticated” text messages will be allowed into the record as evidence.

The case at hand, Commonwealth v. Koch, pits the state against alleged marijuana dealer Amy Koch. Investigators recovered evidence from the scene including cannabis, a digital scale, drug paraphernalia and a cellphone, among other things. Koch admitted to owning the phone, but does not take responsibility for anything saved on it, including the text messages in question. Some of these text messages (13 have been singled out by prosecutors) presumably discuss details of drug-related sales and interactions, although none are quoted in the article.

The two prosecutors in the case view these texts as evidence that Koch’s intention was to distribute the marijuana in her possession, which is a much weightier charge than simple possession for personal use.

Judge Mary Jane Bowes explained to a three-judge panel: “In the majority of courts to have considered the question, the mere fact that an email bears a particular email address is inadequate to authenticate the identity of the author; typically, courts demand additional evidence.”

Present adds, “And, although text messages are ‘somewhat different’ because they are ‘intrinsic’ to an individual cellular phone, Bowes acknowledged that doesn’t mean more than one person cannot use the same phone…The fact police found the phone on a table near Koch was ‘of no probative value in determining whether she authored text messages days and weeks before,’ Bowes said.”

This is obviously what the defense hoped to establish, especially because several text messages saved on the phone refer to the defendant in the third person, thus suggesting she did not author all of them.

The ruling in this case may set an important precedent: very few rulings on SMS (short message service) text messages have been handed down by Pennsylvania courts. One decision in 2005 skirted the issue and stated that electronic messages can be evaluated within the existing framework of the law, just like physical paper documents. This is proving not to be the case as text messages and emails become an ever more prevalent part of the average American’s daily life. The court opted not to establish a new set of criteria for the admissibility of digital transmissions, preferring instead to review such matters on a case-by-case basis. Since this is the first case of its kind since 2005, many anxiously await the Pennsylvania State Supreme Court’s decision in Koch.

Continuing the thread of advising caution in any and all electronic messaging, Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig LLP strongly warns against transmitting anything incriminating. It is crucial to remember that anything you send to someone digitally can potentially live forever. You have no way of knowing that the person with whom you are corresponding will not save your messages or even pass them onto other prying eyes. When it comes to texts, emails, Twitter and Facebook posts, comments and messages, it is always best to err on the side of extreme caution.


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