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Evidence: Court of Appeals Tackles Text Messages
Posted in Litigation

Earlier this week, the Indiana Court of Appeals addressed as a matter of first impression in Indiana law, whether text messages contained on a cell phone must be authenticated, apart from the authentication of the cell phone itself, before being admitted into evidence. 

In Hape v. State, the defendant was convicted of possessing methamphetamine with the intent to deliver and resisting law enforcement, and was found to be a habitual offender.  During trial, the State offered into evidence the defendant’s cell phone as part of the evidence shown to have been confiscated at the time of arrest.  Following the trial, the parties learned that, during the deliberations, the jury read messages saved on the cell phone that were previously undiscovered by the State and the defense.

The Indiana Court of Appeals addressed, first, the defendant’s request to impeach the verdict because of the jury’s finding and use of the text messages.  The Court explained that a verdict may be impeached based on “extrinsic or extraneous material [being] brought into deliberations . . . where there is a substantial possibility that such extrinsic material prejudiced the verdict.”  The Court then concluded that text messages “are intrinsic to the cellular telephones in which they are stored,” and that “turning on the telephone did not constitute an extrajudicial experiment that impermissibly exposed the jury to extraneous information.” Instead, the Court held, “[t]urning on a device that is made to be turned on constitutes a permissible examination of the evidence before the jury.”  Thus, the defendant could not impeach the jury’s verdict with them.

The Court also concluded that “had the State intentionally offered the text messages into evidence, the purpose for doing so would have been for an evidentiary purpose different than that of the cellular telephones,” thus requiring separate authentication.  However, the presentation of text messages to the jury that had not been properly authenticated was only harmless error.  The Court further concluded that because there was no reason to believe that the sender of the text messages discovered by the jury “had any intention they be used in future legal proceedings,” and Hape, the person to whom the statements were made, “did not collect them for the purposes of future legal utility,” the Confrontation Clause is not implicated by use of the messages because they are “not testimonial.” 

Separately, the Court also concluded that a trooper offered by the State as a witness could not testify, as either a lay or expert witness, regarding “how much methamphetamine it takes for a person to get high.”  “Such information about the effect of a chemical substance upon a person’s body is scientific in nature,” the Court explained, and must be presented with an expert witness who testifies to the scientific principles and methodology used to reach his or her conclusions.  However, the introduction of the trooper’s improper testimony was considered only harmless error.

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