Text messages, while a very common form of communication in 2018, have a less-developed body of case law governing their use as evidence than emails. Text messaging became available to the U.S. public around 1993 and slowly became popularized through the late '90s and early 2000s, until, in 2007, Americans sent and received more text messages per month than phone calls. See Christine Erickson, “A Brief History of Text Messaging,” Mashable.com (Sept. 21, 2012). A little over 10 years later, the U.S. courts are still working out exactly how to deal with all of the evidence created by this method of electronic communication. This article will examine the existing body of case law nationally, and how New York state courts have interpreted it in the few instances where challenges to admissibility or authentication have resulted in written decisions.

Of course, there is a fulsome body of case law governing the authentication and admissibility of emails. However, a fundamental difference between an email and a text message exists in that when one sends an email, one typically also re-transmits the entire chain of messages below it, creating a single record that contains an entire conversation. Not so with text messages, where each text message is a discrete transmission and record. This creates an interesting question when offering text messages as evidence: Does each individual text message in a chain require a separate foundation and basis for admissibility? Examination of available case law suggests that the answer is yes.

Admissibility

Despite the prevalence of text messaging today, there are a limited number of written decisions in New York state courts from which to paint a clear picture regarding the procedure for admitting a chain of text messages as evidence. Fortunately, text messages appear to be treated fairly uniformly by state and federal courts across the country, and New York state courts appear to follow those trends. In both state and federal courts, each text message is generally treated as an individual record requiring separate foundation and grounds for admission into evidence. See, for example, United States v. Ellis, No. 12-CR-20228, 2013 WL 2285457, at *2 (E.D. Mich. May 23, 2013), aff'd, 626 F. App'x 148 (6th Cir. 2015), in which the District Court conducts separate analysis for each incoming text message at issue, determining whether each message is inadmissible hearsay. (Outgoing text messages, when sent by a party, are, of course, admissible under hearsay rules as admissions).

New York state courts have fairly uniformly followed this procedure, also analyzing each individual text message, rather than a whole chain of messages together, for the purposes of admissibility. See People v. Rodriguez, 149 A.D.3d 464, 464 (1st Dep't 2017) (noting that only certain text messages in a chain were admissible, where some messages were not); People v. Dixon, 144 A.D.3d 701 (2d Dep't 2016) (noting that objections to certain individual messages were preserved). This can be tricky because parties to a litigation tend to present text messages as evidence in a compiled version, displaying text messages both to and from the party at issue over a period of time. Best practice in that scenario is to object to the particular text messages for which there is no foundation or grounds for admission into evidence. See, e.g., State v. Martinez, 275 Or. App. 451, 460 (2015) (noting that a party should object to each individual text message that they find objectionable in an exhibit containing multiple text messages).

Only weeks ago, in December 2016, Sheppard Mullin dealt with this precise issue during a jury trial in front of the Judge Barry Ostrager in the New York State Supreme Court, Commercial Division in First Manhattan Consulting Group v. Novantas, No. 652492/2014. The court addressed each text message as an individual record, finding that only those for which foundation had been laid should be published to the jury.

Like all rules there are exceptions. In rare circumstances, and for specific purposes, courts outside of New York state have treated groups of text messages as a single record. For example, in Commonwealth v. Squires, 83 N.E.3d 198 (Mass. App. Ct. 2017) a Massachusetts court, dealing with “first complaint testimony” in a sexual assault case, found that text messages in a conversation should be considered together as the “first complaint.” In Cannon v. Vill. of Bald Head Island, N. Carolina, No. 7:15-CV-187-H, 2017 WL 2712958, at *14 (E.D.N.C. June 22, 2017), a District Court dealing with distinguishing public and private speech in a case about retaliatory discharge of government employees, found that the text messages at issue should be considered as a whole and not parsed for texts that are of public versus private concern.

These exceptions are extremely specialized and therefore not likely to affect general practice. New York state courts have issued no corollary decision to date.

When text messages are offered into evidence, hearsay objections may be made on a text-by-text basis. However, when text messages are offered in a chain or as a compiled set of both incoming and outgoing messages, courts outside New York state have occasionally decided to also admit the accompanying hearsay messages in a chain when at least some of the messages in that chain have been found to be admissible for the truth of the matter asserted therein, in order to provide context for the admissible messages (for example, if text 1 is a question and text 2 is an answer, and text 2 has been found to be admissible for the truth of the matter asserted therein, then text 1 may be admitted as well even if it is hearsay for the limited purpose of providing context). For example, in United States v. Thomas, No. 3:14-CR-00031 RNC, 2015 WL 237337, at *4 (D. Conn. Jan. 17, 2015), the district court parsed multiple text message chains to determine whether incoming text messages, not written by a party, could be admitted under the rules of evidence. In one text chain, the defendant's text reading “I'm on it” was the admissible admission. The court determined that the incoming text preceding “I'm on it” was admissible because the incoming text was “part of the necessary context for understanding [the defendant's] own statements.” Id. at *3 (internal citations and quotations omitted). Importantly, where the defendant did not respond to an incoming message, the court refused to admit the incoming message. Id. at *4. However, messages in response to outgoing messages or in a chain do not automatically come in for context—the court must analyze whether they can come in for that purpose, and may decide that they cannot. See Com. v. Mosley, 114 A.3d 1072, 1084 (Pa. Super. Ct. 2015) (holding incoming messages were being introduced for truth, rather than context, and were not admissible).

Again, there are no New York state court decisions that track the logic or conclusion of these out-of-state cases to date, and the current holding case law requires that admissibility be determined on a case-by-case basis. See People v. Dixon, 144 A.D.3d 701, 701 (2d Dep't 2016) (noting that the trial court has discretion with regard to the admission of text messages).

Authentication

Offering text messages as evidence can occasionally also raise authentication issues. Of course, where a custodian of the service provider provides testimony, text messages may be admitted as business records of the service provider, where authenticated by a custodian of the records at the provider. See, e.g., State v. Blake, 974 N.E.2d 730, 741 (Ohio Ct. App. 2012). But in instances where it is not practicable to have the service provider provide such testimony, there is potential for authentication challenges.

Luckily, in New York, even in the absence of such custodial testimony, text messages may be authenticated through testimony and other circumstantial evidence. The evidence required to authenticate the messages need not rise to the level of custodial or forensic evidence. For example, in People v. Moye, 51 Misc. 3d 1216(A) at *6 (N.Y. Sup. Ct. 2016), an electronic message was deemed authenticated based on circumstantial evidence, including the name on the account, the account picture, and that the contents of the message contained knowledge of the defendant. The court held that these “circumstances together [were] sufficient to establish a reasonable likelihood that the writing came from the defendant and is sufficient authentication.” Id. While electronic messaging may raise the specter of anonymity or impersonation, where the context makes it likely that the messages were sent by a particular party, the courts do not hesitate to authenticate electronic messages. See People v. Pierre, 41 A.D.3d 289, 291 (1st Dep't 2007) (finding a message properly authenticated through circumstantial evidence, even though there was “no technical evidence in this regard.”).

In short, when text messages are offered into evidence in New York state courts, there must be a basis to admit each discrete message, and challenges to individual messages should be raised. However, even if there is no service provider available to act as custodian for authentication purposes, New York state courts will still permit authentication of text messages.

Rena Andoh is a partner and James Salem is an associate in Sheppard, Mullin, Richter & Hampton's business trials practice group, based in the firm's New York office. They can be reached at [email protected] and [email protected], respectively.