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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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