One of the most basic evidentiary issues encountered during court proceedings is the authenticity of a thing presented. In other words, is the thing presented actually the thing the proponent claims it to be? This general rule of authenticity essentially applies to all physical evidence presented, whether the evidence is a knife, gun, photograph, letter, or electronic message.
A recent Florida appellate decision addressed the issue of authenticity of text messages. Just like any other writing, text messages must be shown to be authentic before they may be accepted into evidence during a trial. See Walker v. Harley Anderson, Case No. 4D19-2216, 45 Fla. L. Weekly D2116a (Fla. 4th DCA Sept. 9, 2020) (reversing civil injunction granted by trial court where the plaintiff failed to authenticate text messages).
In its detailed Walker opinion, the Fourth District Court of Appeal explained the facts of the case, why authentication is important, and how authentication of a text message may occur:
Appellee offered a series of ten pages of text messages into evidence [in support of her request for an injunction due to stalking]. Appellant objected, contending that she did not recognize the telephone numbers from which the messages were sent. Over objection, the court admitted the messages. The trial court asked appellee how she knew that the messages were from appellant. After much back and forth, appellee said she knew the messages were from appellant because of the content of the messages, that they were intended to harass her, and appellant had stated that she would harass appellee’s nephew’s family.
The court then asked appellant if she sent the text messages. Appellant denied sending the text messages and testified that she did not know who sent them. She did not recognize the phone numbers. Her phone records were entered as an exhibit. The phone numbers on the texts to appellee did not match the phone number in appellant’s record. Appellant then presented the evidence of threatening text messages that she had received. Like appellee, she did not specifically know that the text messages were from appellee but concluded that, based on their content, they had to be from someone in the nephew’s family.
After the presentation of evidence, the court acknowledged in its ruling that the texts sent to both appellant and appellee were threatening and would promote fear and anxiety in the receiver. As to appellant’s counterpetition, the court found that appellant candidly acknowledged that she did not know specifically who sent the messages. Therefore, the court could not enter a final judgment against appellee on the counter petition. As to appellee’s petition, the court found that the texts most likely came from appellant “because there’s no alternative that’s been provided. So, I don’t know who else would have done that and that may be just in part given the nature of the relationships here.” The court then entered a final judgment in favor of appellee, and appellant now appeals that judgment.
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Section 90.901, Florida Statutes (2019) provides: “[a]uthentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
“In determining whether the evidence submitted is sufficient for this purpose [of authentication], the trial judge must evaluate each instance on its own merits, there being no specific list of requirements for such a determination.” Justus v. State, 438 So. 2d 358, 365 (Fla. 1983); Symonette v. State, 100 So. 3d 180, 183 (Fla. 4th DCA 2012). “Evidence may be authenticated by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances. In addition, the evidence may be authenticated either by using extrinsic evidence, or by showing that it meets the requirements for self-authentication.” Jackson v. State, 979 So. 2d 1153, 1154 (Fla. 5th DCA 2008).
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“Testimony that a person received a text or email from another is not sufficient, by itself, to authenticate the identity of the sender.” Charles W. Ehrhardt, 1 West’s Fla. Practice Series section 901.1a (2020 ed.). Other factors can circumstantially authenticate the text. Id. See, e.g., United States v. Siddiqui, 235 F. 3d 1318, 1322 (11th Cir. 2000) (finding that a number of factors supported the authenticity of the email, that the address bore the defendant’s address and when the witness replied to the email the “reply function” of the witness’s email system automatically put the defendant’s address as the sender; the context of the email showed details of the defendant’s conduct and an apology that correlated to the defendant’s conduct; and the email referred to the author by defendant’s nickname and the witnesses confirmed that in phone conversations the defendant made the same requests as in the emails); Pavlovich v. State, 6 N.E. 3d 969, 978-79 (Ind. Ct. App. 2014) (finding text messages had been properly authenticated by circumstantial evidence by a witness who confirmed that the 2662 number was used to arrange a meeting with the defendant; that the witness recognized the defendant’s voice on the outgoing voicemail; and that the messages from the 2662 number indicated familiarity with the witness’ escort business, the prior meeting between the witness and defendant and their prior discussion); compare Commonwealth v. Koch, 39 A. 3d 996, 1005 (Pa. Super. Ct. 2011) (finding the trial court erred in admitting text messages into evidence; there was no testimony from the persons who sent or received the text messages and no contextual clues).
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In this case, there was no direct evidence that the messages were sent by appellant. No one saw or heard appellant send the messages. The messages appear to be from different phone numbers, and none of the origination numbers match the phone number of appellant, according to her phone bill placed into evidence. The trial court did not analyze the content of the messages but simply found no other explanation as to who sent them. This is insufficient, particularly after our review of the messages themselves.
Outside of a few references in the messages to the name of appellant’s boyfriend, the nephew of the appellee, and a reference to “aunty” there are no clues as to who sent the messages or what they are about. The discord between the nephew and appellant appears to be well known between the two families. The first five pages of texts offered by appellee are dated January 1, and appellee testified that the year was 2019. These texts purportedly come from three different phone numbers. None of the phone numbers match the phone numbers on appellant’s phone bill. Appellee did not testify that she recognized any of the numbers on the texts. Their substance generally refers to the nephew and threats to kill him but is populated with the pronoun “we” and not “I” indicating that multiple people are involved in these threats. One of the messages refers to appellant in the third person, indicating that it was sent from someone other than appellant.
As noted by the court, the last five pages of texts look different than the first five pages of texts. None of these texts are dated. Only the first two pages of the photographs of the text messages have origination phone numbers. Neither of the origination phone numbers match appellant’s phone numbers on her bill. The remaining pages of text messages show only a day of the week and time, no origination phone number. In this group of texts, there is no mention of the nephew or of details known only to the appellant. In fact, one of the messages seems to convey that the sender has been wronged by a woman, not the nephew.
To summarize, the contextual clues in the texts are insufficient to provide authentication that these texts were sent by appellant. The messages do not contain any information which would have been known only to the appellant. The direct evidence is insufficient as well. The messages do not show appellant’s telephone number as sender.
As the proponent of admission of the evidence, it was the appellee’s burden to prove the authenticity of the text messages as being sent by appellant. Thus, the trial court’s rationale that no other explanation for the messages was offered placed on appellant the obligation of disproving their authenticity. This was error.
Walker, at *1-4.
The motto of this story: if there is no pretrial stipulation to the authenticity of a text message, or any other electronic communication you hope to present as evidence during trial, make sure you have witness testimony ready to establish the communication is from the person you claim sent it. It is the movant’s burden to establish authenticity. It is not the non-movant’s burden to establish the lack of authenticity.