A few years ago I had a conversation with a prosecutor about proving a case with text messages. I represented a victim of a crime in which the perpetrator had confirmed that he had punched my client in a text message. The prosecutor told me that it was extremely difficult to use a text message as evidence. He said that he would have to subpoena the company that provides the cell phone service to obtain the text message. Then the cell phone company would have to send a witness who can testify that the records show that the text message came from the perpetrator’s phone. Then, after that, they still have to prove that the perpetrator actually sent the message and not someone else who used the phone.
A recent case from the Massachusetts Appeals Court establishes that in many cases, it is much easier to introduce text messages than this prosecutor thought. In the case of Commonwealth v. Toney, Mass.App.Ct. (No. 13-P-275, Feb. 5, 2014) the Court held that a text message may be introduced based on the testimony of the recipient of the message and does not require a subpoena to the cell phone company. However, this opinion is an unpublished opinion of the Court and can’t be used as precedent. Nevertheless, the logic used by the Court should guide judges and lawyers in the future.
The introduction of a text message as evidence can be broken down into two elements: foundation and contents. The Toney case only dealt with the foundation element as the prosecutor never tried to introduce the text message itself. The victim in this case testified that “since we were friends, her phone number was in my phone,” and that “I know that when I got a text message with the name ‘Chantelle Toney,’ . . . it was from Chantelle Toney.” The court held that this testimony was sufficient to allow the jury to determine if the text message was sent by Chantelle Toney.
This case treats text messages the same way that telephone calls are treated. A telephone call can be introduced into evidence if the person testifies to the circumstances of the telephone and the totality of the circumstances show the identity of the caller. Essentially, this is what the Court did in the Toney case. Based on the totality of the circumstances, the Judge held that the witness could identify the person that she believed sent the text.
While the Toney case did not seek to introduce the contents of the text message, this is usually very easy to do. I usually take the cellphone, display the text message, place it on a copy machine, and copy the text. I then make sure the actual cell phone is available in Court and offer the copied text as evidence.
Introduction of evidence can be a complicated concept. This is particularly true for new technology like text messages. An experienced trial attorney should be prepared to apply the rules of evidence to this new technology.