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.

Police obtained a separate search warrant for the phone and searched it, finding several texts sent and received four to 10 days prior to the search. None of the names of the parties to the text chats were the defendant's. A detective later testified that the text messages “reflected drug sales activity due to references he understood from his training and experience,” with slang for cocaine, marijuana, various quantities of drugs, including an “eight ball” (about 3.33 grams) of cocaine, and arrangements for drug sales being used.

Koch was convicted of felony possession with intent to deliver marijuana, both as a principal and an accomplice, and misdemeanor marijuana possession. She was acquitted of criminal conspiracy. At trial, she objected to admission of the texts as hearsay, and said they had not been properly authenticated, as the detective introducing them was not a party and they were “unreliable because the phone was shared between two people.” The state argued that the texts were not hearsay because they were introduced only to show “that these things were said on this phone ' and that these [statements] would constitute drug receipts, drug statements and orders.” The trial court ruled the texts admissible, to show that, in the prosecutor's words, “[Koch's] phone was used in drug transactions, and, therefore, it makes it more probable than not when [she] possessed this marijuana that she did so with the intent to deliver as opposed to personal use.”

The Court's Opinion

Chief Justice Ronald D. Castille, writing in affirmance, and Justices Thomas G. Saylor and J. Michael Eakin, writing for reversal, agreed that, given the low burden of proof regarding authentication, the texts were properly authenticated. The justices disagreed as to how valuable evidence of authorship was in this calculus, but all agreed that because Koch admitted ownership of the phone, other evidence was sufficient to establish that the texts “indicated drug sales activity,” and Koch was charged as both an accomplice and conspirator, the evidence presented was sufficient to authenticate the texts.

Castille was not as charitable to the state with regard to whether the texts were inadmissible hearsay. The court framed the issue as whether the texts were offered for the truth of the matter asserted or “for some relevant purpose other than” that, “such as motive or a witness' relevant course of conduct.” The court cautioned that, “on appeal, reviewing courts should be wary of proffered bases for admission that may be pretexts for getting fact-bound evidence admitted for a substantive purpose.”

The court rejected the state's argument “that the message contents were not offered for the truth of the matter asserted, but as 'drug-related records'” found admissible in Commonwealth v. Glover, 399 Pa. Super. 610, 582 A.2d 1111 (Pa. Super. 1990). It further rejected the alternative argument that the texts “were not hearsay because they were admissible as the statements of co-conspirators or co-participants in a crime, pursuant to Rule of Evidence 803(25)(E).”

The court chided the state for taking the “common fallback position” that the “out-of-court statements are not being offered for their truth,” questioning “if the hearsay is not being offered for its truth, then what exactly is its relevance,” and, if the evidence is only of “tangential relevance,” does its “probative value ' outweigh the potential for prejudice?” It found these questions “not difficult” here because “the only relevance” of the texts was “precisely for the truth of the matter asserted” ' that they were drug transactions ' and the court had “little doubt that that is precisely how the lay jury construed” them.

Writing for reversal, Saylor understood the state's position to be that the texts were not hearsay because they “should not be regarded as containing any 'assertions' at all, but rather, they merely reflect the subject matter of the participants' conversation ( i.e. , illegal drugs).” Saylor cited to Rule of Evidence 801(a), which defined a “statement,” for the purposes of the rule against hearsay, “in terms of assertive verbal or nonverbal conduct.” Saylor quoted Rule 801's advisory committee's note that the “effect of the definition of 'statement' is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.” To support his position, he cited United States v. Boswell, 530 Fed. Appx. 214, 216 (4th Cir. 2013), a 2013 Fourth Circuit case that found “a text message containing a drug solicitation was non-hearsay” and a 2009 Sixth Circuit case, United States v. Rodriguez-Lopez, 565 F.3d 312, 314-15 (6th Cir. 2009), that held drug solicitations directed to a defendant's cellphone were not hearsay. Since Pennsylvania's Rule 801 was “patterned after its federal analogue,” Saylor reasoned that none of the texts (save one, which he found was harmless error) was offered for the truth of the matter asserted, but rather as “evincing drug distribution,” and so were properly admitted.

Eakin, also writing for reversal, found, as did Saylor, that because the texts “were not offered to prove the truth of the matter asserted” but rather to “demonstrate activity involving the distribution or intent to distribute drugs and the relationship between the parties,” the texts were simply not hearsay, and so admissible. Eakin cited to a 1992 Superior Court case holding that business records were not hearsay because they were offered only to show that the parties mentioned therein were associated with one another, as well as to Glover, rejected by Castille in his opinion.

Analysis

One of the disagreements between Castille and Eakin was that the former asserted that text messages, as new technology, posed new challenges to the rules of evidence, while Eakin's position was that there was nothing inherently different between a texted utterance and a verbal or handwritten one such that rules drafted when only the latter existed should have to be rethought in order to apply to the former. Eakin's position should have prevailed.

Consider the admissibility of the marijuana itself. Three important truths made it admissible: 1) the charges included unlawful possession of the drugs, making it relevant; 2) the evidence the police found prior to and upon execution of the warrant was sufficient to show it was within the defendant's possession; and 3) expert evidence was sufficient to prove that it was, in fact, marijuana.

How would the texts be any different? The same charges made them relevant, the fact that they were on the defendant's cellphone showed possession, and expert evidence interpreting them as having to do with drug trafficking proved that they were, in fact, texts about drug trafficking.

Castille would counter that they could be relevant only if they were admitted for the truth of the matter asserted, which would make them hearsay since the declarants of the texts were not established. Putting aside the practical point that it is highly unlikely that anyone but Koch would have been sending or receiving texts on her cellphone, unless such was done with her knowledge and consent ' cellphones are personal to the user, unlike home phones from the “ancient” days of the 1990s ' the legal point is that the texts would not have to be offered for the truth of the matter asserted to be relevant, only to prove that the texts were what they appeared to be: conversations regarding drug trafficking.

The discovery of the scale within proximity of the marijuana was admissible because it was within the dominion and control of the defendant and probative as to whether the possession of the marijuana was simply for personal use or with the intent to deliver. The exact same thing could be said regarding the texts. Just as the scale (or, in other cases cited and discussed, record books of what appeared to be drug transactions) was probative of whether the marijuana was possessed simply for personal use or with the intent to deliver, so were the texts. They did not have to be offered for the truth of the matter that the defendant participated in those conversations to sell drugs. Rather, to be probative, the texts simply had to be authentic parts of actual drug-dealing conversations, offered to prove the common-sense point that persons in possession of illegal drugs and records of conversations regarding selling illegal drugs most likely possessed those drugs with the intent to sell them.

Majority Decision Needed

Saylor and Eakin may be correct in their analysis, and I in mine, but such will not translate into Pennsylvania law unless and until the same issue is again presented to the court and it resolves it with a majority decision taking our positions. Until then, the Superior Court's determination that the texts were inadmissible hearsay, and Castille's opinion in agreement with the Superior Court, control. Hopefully, by then the court will come to see that texts offered as those in the instant case were may be the result of new technology but are admissible for the same reasons as their low-tech analogs have been for quite a while.

Leonard Deutchman is vice president and general counsel of LDiscovery LLC, a firm with offices in McLean, VA, New York City, Philadelphia, Chicago, Atlanta, San Francisco and London that specializes in electronic discovery, data hosting, managed review, collections and digital forensics. This article originally appeared in The Legal Intelligencer, an ALM sibling of Internet Law & Strategy.

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.

Police obtained a separate search warrant for the phone and searched it, finding several texts sent and received four to 10 days prior to the search. None of the names of the parties to the text chats were the defendant's. A detective later testified that the text messages “reflected drug sales activity due to references he understood from his training and experience,” with slang for cocaine, marijuana, various quantities of drugs, including an “eight ball” (about 3.33 grams) of cocaine, and arrangements for drug sales being used.

Koch was convicted of felony possession with intent to deliver marijuana, both as a principal and an accomplice, and misdemeanor marijuana possession. She was acquitted of criminal conspiracy. At trial, she objected to admission of the texts as hearsay, and said they had not been properly authenticated, as the detective introducing them was not a party and they were “unreliable because the phone was shared between two people.” The state argued that the texts were not hearsay because they were introduced only to show “that these things were said on this phone ' and that these [statements] would constitute drug receipts, drug statements and orders.” The trial court ruled the texts admissible, to show that, in the prosecutor's words, “[Koch's] phone was used in drug transactions, and, therefore, it makes it more probable than not when [she] possessed this marijuana that she did so with the intent to deliver as opposed to personal use.”

The Court's Opinion

Chief Justice Ronald D. Castille, writing in affirmance, and Justices Thomas G. Saylor and J. Michael Eakin, writing for reversal, agreed that, given the low burden of proof regarding authentication, the texts were properly authenticated. The justices disagreed as to how valuable evidence of authorship was in this calculus, but all agreed that because Koch admitted ownership of the phone, other evidence was sufficient to establish that the texts “indicated drug sales activity,” and Koch was charged as both an accomplice and conspirator, the evidence presented was sufficient to authenticate the texts.

Castille was not as charitable to the state with regard to whether the texts were inadmissible hearsay. The court framed the issue as whether the texts were offered for the truth of the matter asserted or “for some relevant purpose other than” that, “such as motive or a witness' relevant course of conduct.” The court cautioned that, “on appeal, reviewing courts should be wary of proffered bases for admission that may be pretexts for getting fact-bound evidence admitted for a substantive purpose.”

The court rejected the state's argument “that the message contents were not offered for the truth of the matter asserted, but as 'drug-related records'” found admissible in Commonwealth v. Glover, 399 Pa. Super. 610, 582 A.2d 1111 (Pa. Super. 1990). It further rejected the alternative argument that the texts “were not hearsay because they were admissible as the statements of co-conspirators or co-participants in a crime, pursuant to Rule of Evidence 803(25)(E).”

The court chided the state for taking the “common fallback position” that the “out-of-court statements are not being offered for their truth,” questioning “if the hearsay is not being offered for its truth, then what exactly is its relevance,” and, if the evidence is only of “tangential relevance,” does its “probative value ' outweigh the potential for prejudice?” It found these questions “not difficult” here because “the only relevance” of the texts was “precisely for the truth of the matter asserted” ' that they were drug transactions ' and the court had “little doubt that that is precisely how the lay jury construed” them.

Writing for reversal, Saylor understood the state's position to be that the texts were not hearsay because they “should not be regarded as containing any 'assertions' at all, but rather, they merely reflect the subject matter of the participants' conversation ( i.e. , illegal drugs).” Saylor cited to Rule of Evidence 801(a), which defined a “statement,” for the purposes of the rule against hearsay, “in terms of assertive verbal or nonverbal conduct.” Saylor quoted Rule 801's advisory committee's note that the “effect of the definition of 'statement' is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.” To support his position, he cited United States v. Boswell, 530 Fed. Appx. 214, 216 (4th Cir. 2013), a 2013 Fourth Circuit case that found “a text message containing a drug solicitation was non-hearsay” and a 2009 Sixth Circuit case, United States v. Rodriguez-Lopez, 565 F.3d 312, 314-15 (6th Cir. 2009), that held drug solicitations directed to a defendant's cellphone were not hearsay. Since Pennsylvania's Rule 801 was “patterned after its federal analogue,” Saylor reasoned that none of the texts (save one, which he found was harmless error) was offered for the truth of the matter asserted, but rather as “evincing drug distribution,” and so were properly admitted.

Eakin, also writing for reversal, found, as did Saylor, that because the texts “were not offered to prove the truth of the matter asserted” but rather to “demonstrate activity involving the distribution or intent to distribute drugs and the relationship between the parties,” the texts were simply not hearsay, and so admissible. Eakin cited to a 1992 Superior Court case holding that business records were not hearsay because they were offered only to show that the parties mentioned therein were associated with one another, as well as to Glover, rejected by Castille in his opinion.

Analysis

One of the disagreements between Castille and Eakin was that the former asserted that text messages, as new technology, posed new challenges to the rules of evidence, while Eakin's position was that there was nothing inherently different between a texted utterance and a verbal or handwritten one such that rules drafted when only the latter existed should have to be rethought in order to apply to the former. Eakin's position should have prevailed.

Consider the admissibility of the marijuana itself. Three important truths made it admissible: 1) the charges included unlawful possession of the drugs, making it relevant; 2) the evidence the police found prior to and upon execution of the warrant was sufficient to show it was within the defendant's possession; and 3) expert evidence was sufficient to prove that it was, in fact, marijuana.

How would the texts be any different? The same charges made them relevant, the fact that they were on the defendant's cellphone showed possession, and expert evidence interpreting them as having to do with drug trafficking proved that they were, in fact, texts about drug trafficking.

Castille would counter that they could be relevant only if they were admitted for the truth of the matter asserted, which would make them hearsay since the declarants of the texts were not established. Putting aside the practical point that it is highly unlikely that anyone but Koch would have been sending or receiving texts on her cellphone, unless such was done with her knowledge and consent ' cellphones are personal to the user, unlike home phones from the “ancient” days of the 1990s ' the legal point is that the texts would not have to be offered for the truth of the matter asserted to be relevant, only to prove that the texts were what they appeared to be: conversations regarding drug trafficking.

The discovery of the scale within proximity of the marijuana was admissible because it was within the dominion and control of the defendant and probative as to whether the possession of the marijuana was simply for personal use or with the intent to deliver. The exact same thing could be said regarding the texts. Just as the scale (or, in other cases cited and discussed, record books of what appeared to be drug transactions) was probative of whether the marijuana was possessed simply for personal use or with the intent to deliver, so were the texts. They did not have to be offered for the truth of the matter that the defendant participated in those conversations to sell drugs. Rather, to be probative, the texts simply had to be authentic parts of actual drug-dealing conversations, offered to prove the common-sense point that persons in possession of illegal drugs and records of conversations regarding selling illegal drugs most likely possessed those drugs with the intent to sell them.

Majority Decision Needed

Saylor and Eakin may be correct in their analysis, and I in mine, but such will not translate into Pennsylvania law unless and until the same issue is again presented to the court and it resolves it with a majority decision taking our positions. Until then, the Superior Court's determination that the texts were inadmissible hearsay, and Castille's opinion in agreement with the Superior Court, control. Hopefully, by then the court will come to see that texts offered as those in the instant case were may be the result of new technology but are admissible for the same reasons as their low-tech analogs have been for quite a while.

Leonard Deutchman is vice president and general counsel of LDiscovery LLC, a firm with offices in McLean, VA, New York City, Philadelphia, Chicago, Atlanta, San Francisco and London that specializes in electronic discovery, data hosting, managed review, collections and digital forensics. This article originally appeared in The Legal Intelligencer, an ALM sibling of Internet Law & Strategy.