Monday, October 8, 2012
Caller ID: Supreme Court Of Arkansas Finds Distinctive Characteristics Sufficient To Authenticate Text Messages
Similar to its federal counterpart, Arkansas Rule of Evidence 901(b)(4) provides that there can be authentication of evidence through
Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
And, as the recent opinion of the Supreme Court of Arkansas in Gulley v. State, 2012 WL 4712207 (Ark. 2012), makes clear, Rule 901(b)(4) is often used to authenticate e-mails, text messages, and the like.In Gulley, Michael Gulley was convicted of the capital murder of Amy Smith and the attempted capital murder of Naaman Moss. The facts adduced at trial indicated that
Shortly after midnight on June 7, 2009, Amy Smith was shot and killed while in her apartment in Prescott. Naaman Moss, who was also in Smith's apartment that night, was shot and wounded. Witnesses who were on the front porch of a neighboring apartment stated at trial that Gulley visited Smith's apartment complex three times that evening. The first time he visited he was in a car and stopped in the parking lot for a few seconds. The second time that he visited, he rode a bicycle, approached the witnesses, and asked who was in Smith's apartment. The final time, he was in a different vehicle. On this third occasion, he got out of the vehicle, approached Smith's apartment, threw something through a window, and fired shots into the apartment....
At trial, the State presented evidence that Gulley and Smith had dated, that Smith no longer wanted to be in a relationship with him, and that Smith was fearful of Gulley and afraid for her life. The State also presented evidence of three text messages that it alleged were sent by Gulley on the day before Smith's murder.
Specifically, Verizon Wireless employee Grant Laisure
testified as to the content of each message, all of which were sent on the day before the murder from a prepaid cellular telephone number assigned to Gulley. Verizon Wireless sold the cellular telephone to Gulley. The first text message was allegedly sent by Gulley to his cousin-by-marriage, Edward Gulley, at 9:24 a.m., and read, "She telling you one thing and everybody else something else. That bitch call you when she get scared, fucked out tramp. If I get anything to do with it, Ki going to be left without any parents and that is boss." The second text message was sent to Mechawana Pearson, Gulley's girlfriend at the time, at 4:07 p.m. and read, "Dats okay too, I got a car out the deal, dat bitch gonna pay, it's just a matter of time." The third text message was sent at 11:30 p.m. to a number assigned to Smith and said, "I'm getting dropped off over there."
After he was convicted, Gulley appealed, claiming, inter alia, that the prosecution failed to properly authenticate the text messages as messages coming from Gulley. According to Gulley, the fact that the messages came from a phone assigned to him was insufficient by itself to establish authentication.
The Supreme Court of Arkansas did not address that issue directly, instead, finding that the text messages were properly authenticated under Rule 901(b)(4). For example,
The second text message at issue [wa]s one sent to Smith's telephone which read, "I'm getting dropped off over there." Testimony from Mr. Laisure established that this text message was sent from the telephone number assigned to Gulley. Mr. Laisure added that the text message was sent at 11:30 pm on June 6, 2009. Another witness, Sharlene Christopher, testified that in the early morning hours of June 7, 2009, the date of Smith's murder, she saw Gulley get out of the passenger side of a white Chevy Malibu, run in front of Smith's apartment, hit or bang on her window, and then she heard gunshots. We hold that the testimony establishing that the text message came from a cellular telephone number assigned to Gulley, together with the witness testimony that Gulley was in fact dropped off at Smith's apartment the night that she was killed, is sufficient to meet the authentication requirements of Rule 901.
I disagree with Daniel. Courts authenticate writings all the time with evidence of the supposed writer's consistent conduct following the writing. E.g., an email from the defendant's email address saying he'll meet the (supposed) juvenile at MacDonalds and that they will run off and have sex, followed by the arrival of the defendant at the MacDonalds at the appointed time authenticates the email.
Now, Daniel will say that this is different; Gulley wasn't arrested at the scene so we cant be sure he was there; the witness may have been wrong. True, but the standard of proof to authenticate is the lowest used at trial: evidence from which a reasonable juror could find that the document was authored by the person the offeror claims to have authored it. Certainly, the eyewitness evidence was reasonably seen by the judge as sufficient to meet that low authentication burden. The judge can't disbelieve the witness. That would be judging the witness's credibility. The judge must apply the standard of proof and admit it if the judge believes that a reasonable juror could find the witness credible (and accurate). I think, no problem.
Finally, there are lots of other authenticating circumstances not mentioned by the court, unfortunately. The (undisputed) facts that the messages were sent to Gulley's relative and to his girlfriend, and referenced a breakup of relations of Gulley with a 'bitch' at a time when it was undisputed that Gulley had been dumped by the victim is 'way more than enough evidence to authenticate the calls.
Posted by: Fred Moss | Oct 9, 2012 1:04:55 PM
"We hold that the testimony establishing that the text message came from a cellular telephone number assigned to Gulley, together with the witness testimony that Gulley was in fact dropped off at Smith's apartment the night that she was killed, is sufficient to meet the authentication requirements of Rule 901."
Well, that's plain error. The testimony of the witnesses can only corroborate if one assumes the testimony is true. The judges have no place and no power to do that because witness credibility is for the jury alone. So it's impossible to use witness testimony for authentication purposes. Perhaps SCOTUSblog is correct and we will finally get Harris overturned and judges might figure out that 2+2=four. I doubt it but one can hope.
Posted by: Daniel | Oct 8, 2012 4:16:32 PM