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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

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  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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