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.


Post a comment to this story

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
Subscribe to Indiana Lawyer
  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.