ILNews

Text messages must be separately authenticated

Back to TopCommentsE-mailPrintBookmark and Share

In a matter of first impression, the Indiana Court of Appeals determined text messages are subject to separate authentication before being admitted into evidence, much like the authentication process that data saved in a computer must undergo before being admitted.

In Darby L. Hape v. State of Indiana, No. 63A01-0804-CR-175, Darby Hape was convicted of felony possession of methamphetamine with intent to deliver, felony resisting law enforcement, and was found to be a habitual offender. After his convictions, he discovered that during deliberations, the jury was able to turn on one of his cell phones, which had been admitted into evidence, and see text messages, including one from "Brett." The text messages weren't introduced as evidence during the trial. Hape claimed that exposure required a correction of error and permission to poll the jury regarding the prejudicial impact of the text message on its deliberations. The trial court denied his motion.

The appellate court upheld the denial of Hape's motion to poll the jury because the text messages didn't constitute extraneous prejudicial information and he didn't meet his burden under Indiana Evidence Rule 606(b) in attempting to impeach the jury verdict with testimony about the messages, wrote Judge Nancy Vaidik.

The text messages are intrinsic to the cell phone and the jury discovered the text messages by turning on the phone that was admitted into evidence. Turning on the phone didn't constitute an extrajudicial experiment that impermissibly exposed the jury to extraneous information, wrote Judge Vaidik.

The appellate court determined the Confrontation Clause doesn't bar the text messages from "Brett" on the phone because they are not testimonial, wrote the judge. There aren't any Indiana cases involving authentication of text messages generated and stored in cell phones, but the Court of Appeals ruled the text messages should be subject to the same authentication requirement of data saved in a computer before it can be admitted into evidence.

"Even though we have determined that a text message stored in a cellular telephone is intrinsic to the telephone, a proponent may offer the substance of the text message for an evidentiary purpose unique from the purpose served by the telephone itself. Rather, in such cases, the text message must be separately authenticated pursuant to Indiana Evidence Rule 901(a)," Judge Vaidik wrote.

Even though the jury saw the text messages without proper authentication, it didn't rise to the level of fundamental error because the jury's exposure was harmless. The evidence against Hape is strong and compelling without the text messages, she wrote.

The Court of Appeals affirmed Hape's convictions but reversed his adjudication as a habitual offender for lack of sufficient evidence and his corresponding 30-year sentence enhancement. The matter is remanded to the trial court to issue a new sentencing order not inconsistent with the opinion.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

ADVERTISEMENT