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Text Messages Inadmissible Hearsay, Penn. Appeals Court Rules

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By Stephanie Rabiner, Esq. on September 30, 2011 1:16 PM

Text message evidence can be valuable, but according to a Pennsylvania appellate court, it may also be inadmissible hearsay.

Defendant Amy Koch was convicted of possession with intent to distribute marijuana. At trial, prosecutors introduced drug-related text messages sent from her phone. The goal was to show that Koch intended to sell the drugs.

That conviction was overturned after the court concluded the text messages had been improperly admitted.

Text message evidence can be troublesome for two reasons: authentication and hearsay. Both were at issue in this case.

Prior to admission, non-testimonial evidence must first be authenticated. The presenting party must show that it is what it purports to be. In this particular case, the prosecution needed to show that the text messages were written by the defendant.

This can be done through the testimony of a witness with personal knowledge or circumstantial evidence. However, courts generally require more than just ownership of the phone and the corresponding number.

The Pennsylvania court found none of this. First, the phone had received messages addressed to third parties. And second, none of the messages contained clues that would identify the defendant as the sender.

The text message evidence was thus not properly authenticated.

It was also found to be inadmissible hearsay. Hearsay is when the facts asserted in an out-of-court statement are being presented as true.

The drug-related text messages contained delivery dates and times. These "facts" were being presented as true, and thus proof of the defendant's intent to sell drugs. Because they were made out of court, the messages are considered hearsay.

None of the above permanently precludes the use of text message evidence. It can still be admitted when authenticated and subject to a hearsay exception. So you should definitely be careful of what you text.

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