When confronted with an issue of first impression – how to demonstrate text messages – the Colorado Magistrate of Appeals chose not to reinvent the wheel. Rather, it wisely borrowed from the Federal Rule of Vestige (“FRE”) 901.
Factual Background
In People v Heisler, the defendant and victim had been romantically involved. They remained in touch without they tapped up but eventually, the victim began dating flipside person and requested Heisler stop texting her.
Heisler ignored the victim’s request and unfurled – with increasing frequency – to text and write reports 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 tabbed the police and Heisler was charged with felony stalking and harassment.
At trial, the magistrate admitted into vestige 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 visualization to shoehorn 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 visualization to shoehorn into vestige the text messages, the appellate magistrate noted the undersong to demonstrate vestige is low, and requires a prima facie showing only. Then, without considering a two-leveled tideway used to demonstrate emails and social media posts,** the appellate magistrate propounded the pursuit two-step process to demonstrate text messages:
Step 1: A witness with personal knowledge must testify that printouts of the text messages virtuously 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 magistrate identified four methods and held the proponent must establish at least two of the four methods:
(a) the phone number was prescribed to or associated with the purported sender;
(b) the substance of the text message(s) was recognizable as stuff from the purported sender;
(c) the purported sender responded to an mart in such a way as to indicate circumstantially that he or she was in fact the tragedian of the communication; and/or
(d) any other corroborative vestige 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 pearly and well-judged 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 considering 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 stuff 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 considering the victim had deleted her responses to his messages.
The appellate magistrate was unpersuaded, stating that prosecution established the printouts virtuously reflected the content of the messages the victim received and that Heisler authored the text messages. The magistrate remoter reasoned that the text messages were admitted as vestige of texts the victim received from Heisler, not as vestige of a conversation between the two. Thus, the text messages were properly authenticated.
Conclusion
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 myriad 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 vestige be sufficiently authenticated by the proponent and hallmark “is satisfied by vestige 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 personal to be or (2) “through consideration of distinctive characteristics shown by an viewing of [the] contents and substance” of the e-mail under the circumstances of the specimen (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.
