Text and Instant Messages: From Authentication to Party Admissions

Anyone with a teenager has probably seen a grossly excessive phone bill from text messaging.  Young people use instant messaging (IM) for social use, even going to the point of ending relationships by IM.[1] Both forms of instant communication use the same language shorthand, such as “LOL” to convey “laughing out loud” or “SLAP” for “Sounds like a plan.”   

Text and instant messages are appearing in case law with increased speed.  These “instant communications” pose issues of authentication, best evidence rule concerns and usually communicate party admissions.   

In Lozano v. Texas, a criminal defendant challenged text messages admitted in his trial as hearsay.  The appellate quickly dealt with the appeal, holding that the text messages were his statements and thus party admissions.[2] In what highlighted the extent of the defendant’s poor judgment, “Exhibit A” to the opinion included all the text messages between the defendant and his victim over a four month period.   

In a murder trial, a Maryland court addressed text message authentication.  The defendant sent threatening text messages to the victim from his cell phone.  The Court held that the phone number and texts were direct evidence that messages were from Defendant, thus authentication was proper.[3]  

A Virginia court put an interesting spin on the best evidence rule and instant messages.  In a criminal case, the defendant admitted to his best friend that he was sorry in an instant message for assaulting her.  The victim testified to the content of the message, because she did not save or print the instant message.  The court found that the defendant’s statements were party admissions, the IM handle was identified as his, and thus the best evidence was the victim’s testimony.[4]  While it may have not been the court’s intent, the outcome was an instant message being treated as a spoken statement, due to the transitory nature of instant messages.   

Text and instant messaging will continue to grow as a regular means of communication.  Attorneys, parties, and the Courts will be facing these issues for a long time to come.  Case preparation will require search terms to include the “LOL” language.  Lawsuits will range from the mundane to extremely high profile.  Just ask Mayor Kwame Kilpatrick of Detroit. 

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[1] “Poll: IMs Help Teens Avoid Embarrassment,” Alan Fram and Trevor Tompson, Associated Press, November 15, 2007.

[2] Lozano v. Texas, Not Reported in S.W.3d, 2007 WL 4216349, 6 (Tex.App.-Fort Worth).

[3] Dickens v. State  175 Md.App. 231 (Md.App.,2007).

[4] Truman v Commonwealth, Not Reported in S.E.2d, 2007 WL 2765796, 4 (Va.App.)