Interpreting The Text: Supreme Court Of Nevada Finds Only 2 Of 12 Text Messages Authenticated In Kidnapping Appeal

A woman is attacked in her apartment by two men. Later that night, the woman's boyfriend receives 12 text messages from the girlfriend's cell phone: 

• “Willy boy, you better [].” (1:29 a.m.).

• “Willy, do you love me.” (1:30 a.m.).

• “You better go check on your b––––.” (1:38 a.m.).

• “Not playing, not going to answer the phone. You better go check on that ... b––––, she is, you know.” (1:42 a.m.).

• “You dumb ass idiot, you're not talking to her. You better go to her house now. I have to keep my promise and I'm not going back over there. I think you should.” (1:47 a.m.).

• “You're an a––––––. Come over ... there or your girl is going to suffocate, idiot.” (1:50 a.m.).

• “Yeah, you better go over there now. She is in the closet tied up.” (1:53 a.m.).

• “I hope you is going over there.” (2:00 a.m.).

• “We just f–––– your b––––.” (2:02 a.m.).

• “I'm not going to tell me or you no more. She even told me she got herps.” (2:05 a.m.).

• “How is your girl? Is she okay?” (3:08 a.m.).

• “You're lucky I didn't kill that b–––– and I told you.” (4:21 a.m.). 

The State is able to establish that:

• the girlfriend's cell phone was stolen during the attack; and that

• when the cell phone was recovered, there were photos of the defendant on the phone.

That said, a bus surveillance video shows that the defendant was sitting next to his co-defendant while the co-defendant was authoring the first two text messages, and the cell phone was eventually recovered from the co-defendant. In the defendant's trial for crimes against the victim, are the text messages admissible? Let's take a look at the recent opinion of the Supreme Court of Nevada in Rodriguez v. State, 2012 WL 1136437 (Nev. 2012).

In Rodriguez, the facts were as stated above, with Kevin Rodriguez allegedly being the assailant along with Timothy Sanders. Rodriguez was eventually charged with conspiracy to commit robbery, conspiracy to commit kidnapping, conspiracy to commit sexual assault, and other crimes.

At trial, the prosecution introduced the 12 text messages into evidence, and, after he was convicted, Rodrigue appealed, claiming that the messages were hearsay and improperly authenticated as messages written by him. In addressing Rodriguez's appeal, the Supreme Court of Nevada held that

Text messages offer new analytical challenges when courts consider their admissibility. However, those challenges do not require a deviation from basic evidentiary rules applied when determining authentication and hearsay.

First, with regard to authentication, the court held that "[a]lthough this presents a question of first impression for this court, other courts have addressed the authentication of text messages, and we turn to their decisions for guidance." The court then cited to several of these cases and distilled from them that

Establishing the identity of the author of a text message through the use of corroborating evidence is critical to satisfying the authentication requirement for admissibility. We thus conclude that, when there has been an objection to admissibility of a text message,...the proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission.

Applying these principles to the case before it, the Nevada Supremes held that

Although the State provided sufficient evidence that the text messages offered into evidence were sent from the victim's cell phone to her boyfriend's cell phone during a time when Rodriguez and Sanders had access to the victim's cell phone, the State only provided sufficient evidence to show that Rodriguez participated in authoring 2 of the 12 proffered text messages—the text message sent at 1:29 a.m. stating, “Willy boy, you better []” and the text message send at 1:30 a.m. stating, “Willy, do you love me.” Those two text messages were sent while Rodriguez and Sanders were on a bus together following the assault. The bus's surveillance video demonstrates that, with Rodriguez seated next to him and watching, Sanders held and operated the victim's cell phone. While it does not appear that Rodriguez typed the two messages, he had firsthand knowledge of the messages and appeared to be participating in composing the messages. Based on this, we conclude that the State provided sufficient direct and circumstantial evidence that tends to corroborate that the two text messages sent at 1:29 a.m. and at 1:30 a.m. were what the State claimed them to be—messages sent or endorsed by Rodriguez that connect him to the assault. However, the record is devoid of any evidence that Rodriguez authored or participated in authoring the ten text messages that were sent after he and Sanders exited the bus around 1:36 a.m. In fact, the evidence suggests that it was Sanders, not Rodriguez, who had possession of the cell phone before the were arrested. Because those ten text messages were not sufficiently authenticated, we conclude that the district court abused its discretion in admitting them.

That left the question of hearsay, with the court finding that the first two text messages were adoptive admissions that were properly admitted against Rodriguez. Of course, that meant that the latter ten text messages were not properly authenticated and constituted inadmissible hearsay, but the court found their improper admission was harmless error given the other evidence of Rodriguez's guilt.

I agree with the court's conclusion and am glad that the court found that evidentiary challenges presented by new forms of communication do not require deviation from basic evidentiary rules. This is part of the point made by Professor Aviva Orenstein in her Shakespearean-inspired forthcoming article, Friends, Gangbangers, Custody Disputants, Lend Me Your Passwords. In it, she argues, inter alia, that we should avoid the temptation reivent the authentication wheel to accommodate the change from pen and paper to text messages to social networking:

Some scholars believe that the complexity and novelty of the new social media “requires greater scrutiny of ‘the foundational requirements’ than letters or other paper records, to bolster reliability.” I, however, agree with the Court in In re F.P., which rejected the notion that electronic communication is “inherently unreliable.” It rejected challenges to authentication stating that “[e]ssentially, appellant would have us create a whole new body of law just to deal with e-mails or instant messages.” The Court acknowledged the possibility that the difficulty of tracing electronic communication with a specific author can create some uncertainty and that “anybody with the right password can gain access to another's e-mail account and send a message ostensibly from that person.” It continued to observe, however, that “the same uncertainties exist with traditional written documents. A signature can be forged; a letter can be typed on another's typewriter; distinct letterhead stationary can be copied or stolen.” Historically, those sorts of questions are for the finder-of-fact to sort out.

I think that these are some of many terrific observations that Orenstein makes in her article, which I will address in more detil tomorrow.

-CM