EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, March 25, 2008

Sex, Lies, And Texting, Take 2: Kwame Kilpatrick's Attorney Might Raise Authentication Challenge To Text Messages

Earlier, I posted about the Kwame Kilpatrick sex/perjury scandal.  As I noted, Kilpatrick, the married mayor of Detroit, and Christine Beatty, his then married chief of staff, testified last summer in a police whistleblower lawsuit that they had no sexual or romantic ties in 2002 and 2003.  The Detroit Free Press, however, got its hands on approximately 14,000 text messages on Beatty's city-issued pager for those years and found many examples of such ties.

Well, Kilpatrick has now been charged with perjury and obstruction of justice, but if his attorney has his way, the text messages will be ruled inadmissible.  As I noted in my earlier post, there are privacy and statutory issues at play with the text messages, which Kilpatrick's attorney, Dan K. Webb, plans to include in a motion to suppress the text messages.  If this motion is unsuccessful, however, Webb had intimated that he may challenge their authenticity.  According to Webb, "Technically, they are hearsay -- out of court statements." "You have to prove they were sent by the mayor and sent by his chief of staff."

Based upon the liberal standard for authentication, such an argument would almost certainly fail.  Pursuant to Federal Rule of Evidence 901(a) and state counterparts such as Michigan Rule of Evidence 901(a), "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."  As I noted in a previous post, courts have been very liberal in finding that proponents have authenticated communications sent through modern technologies. 

For instance, "[e]-mail communications may be authenticated as being from the purported author based on an affidavit of the recipient; the e-mail address from which it originated; comparison of the content to other evidence; and/or statements or other communications from the purported author acknowledging the e-mail communication that is being authenticated."  The same rules apply for text messages:  As long as the proponent can prove that a text message was sent by a device owned/used by the alleged sender of the message, the authentication requirement is satisfied. See, e.g., Dickens v. State, 927 A.2d 32, 37 (Md.App. 2007).  So, assuming that the prosecution can prove that the text messages at issue came from devices owned/used by Kilpatrick and Beatty, the messages can be authenticated, and any arguments that Kilpatrick might have about somebody else sending the messages would go to the weight of the evidence, not its admissibility.

-CM

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