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What Makes Text Messages Not Hearsay?
In Commonwealth v. Koch, No. 45 MAP 2012 (S.Ct. Dec. 30, 2014), the Pennsylvania Supreme Court gave us a present in the form of an affirmance of a Superior Court panel decision that reversed the trial court's denial of the exclusion of text messages on the grounds that they were hearsay. Because the affirmance was the result of a six-justice court being evenly divided at 3-3, none of the opinions is controlling. Nevertheless, they provide insight into the issues arising from the attempt, at least in a criminal matter, to move into evidence text messages without the sender or receiver of those messages being the witness introducing them.
Factual Background
Police searched the trash bins outside of the residence of the defendant, Amy Koch, her boyfriend and her brother. The search yielded plastic baggies containing cocaine and marijuana residue. Police executed a search warrant for the location and found two baggies, each containing 10 grams of marijuana, and a third bag containing marijuana, as well as a bong, a grinder used to separate seeds and stems from the marijuana leaves smoked, empty bags, a scale and the butt of a marijuana joint. They also seized two cellphones, one on the kitchen table near some of the other evidence described; when they seized that phone, the defendant asked them repeatedly “why her cellphone was being taken.” The defendant, her brother and her boyfriend were arrested.
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