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Text messages must be separately authenticated

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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.

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  1. How nice, on the day of my car accident on the way to work at the Indiana Supreme Court. Unlike the others, I did not steal any money or do ANYTHING unethical whatsoever. I am suing the Indiana Supreme Court and appealed the failure of the district court in SDIN to protect me. I am suing the federal judge because she failed to protect me and her abandonment of jurisdiction leaves her open to lawsuits because she stripped herself of immunity. I am a candidate for Indiana Supreme Court justice, and they imposed just enough sanction so that I am made ineligible. I am asking the 7th Circuit to remove all of them and appoint me as the new Chief Justice of Indiana. That's what they get for dishonoring my sacrifice and and violating the ADA in about 50 different ways.

  2. Can anyone please help this mother and child? We can all discuss the mother's rights, child's rights when this court only considered the father's rights. It is actually scarey to think a man like this even being a father period with custody of this child. I don't believe any of his other children would have anything good to say about him being their father! How many people are afraid to say anything or try to help because they are afraid of Carl. He's a bully and that his how he gets his way. Please someone help this mother and child. There has to be someone that has the heart and the means to help this family.

  3. I enrolled America's 1st tax-free Health Savings Account (HSA) so you can trust me. I bet 1/3 of my clients were lawyers because they love tax-free deposits, growth and withdrawals or total tax freedom. Most of the time (always) these clients are uninformed about insurance law. Employer-based health insurance is simple if you read the policy. It says, Employers (lawyers) and employees who are working 30-hours-per-week are ELIGIBLE for insurance. Then I show the lawyer the TERMINATION clause which states: When you are no longer ELIGIBLE! Then I ask a closing question (sales term) to the lawyer which is, "If you have a stroke or cancer and become too sick to work can you keep your health insurance?" If the lawyer had dependent children they needed a "Dependent Conversion Privilege" in case their child got sick or hurt which the lawyers never had. Lawyers are pretty easy sales. Save premium, eliminate taxes and build wealth!

  4. Ok, so cheap laughs made about the Christian Right. hardiharhar ... All kidding aside, it is Mohammad's followers who you should be seeking divine protection from. Allahu Akbar But progressives are in denial about that, even as Europe crumbles.

  5. Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?

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