More than a trillion text messages are sent each year in the United States alone. Some of these messages are work-related communications from law enforcement officers to fellow officers, witnesses, prosecutors, and others. Which, if any, of these messages are discoverable? How should officers preserve discoverable messages? Must prosecutors ask for officers’ text messages before providing discovery to the defense? This post begins to address these questions. Continue reading
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I recently heard a police detective say that the internet was the worst thing that ever happened to law enforcement. He explained that before advent of the internet, criminals had to leave their homes to hook up with other criminals. That movement could easily be tracked by the police. These days conspiracies can be hatched and connections made without anyone leaving the comfort of his den and, correspondingly, without being observed by the police. The detective had a point. But if modern technology and its trail of connections present problems for law enforcement, they create a field of dreams for litigators. Family law attorneys seeking to prove infidelity can mine the timelines of Facebook. Criminal defense attorneys can cross-examine witnesses about their wall posts and tweets. And prosecutors arguably benefit the most from the treasure-trove of electronic proof, which the State often uncovers in the form of incriminating instant messages, emails, and texts.
It is somewhat surprising given the prevalence of electronic evidence that there are so few North Carolina appellate opinions addressing its admissibility. Several years ago, the court of appeals in State v. Taylor, 178 N.C. App. 395, 413-14 (2006), upheld the admission of text messages sent to and from the victim’s phone as properly authenticated. See N.C. Gen. Stat. § 8C-1, Rule 901(a) (“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”). In Taylor, witnesses from the phone company that provided the victim’s service testified about how such messages were sent and how these particular messages were stored and retrieved. The court deemed this evidence sufficient to authenticate the print out of phone company records as text messages sent to and from the victim’s assigned number. The Taylor court further noted that the text messages, which identified the victim’s car and included his first name, contained sufficient circumstantial evidence to show that the victim was the person who sent and received them. The court did not consider it necessary to show that the defendant was the person with whom the victim was corresponding. For this reason, while Taylor is instructive in terms of authenticating print outs of phone messages, the case fails to provide a complete road-map for the introduction of such evidence in the typical criminal case when the relevancy of the writing hinges on it having been written by the defendant. The court of appeals’ unpublished opinion in State v. Williams, 191 N.C. App. 254 (2008) (unpublished), is of some help in that regard. In Williams, the court determined that the content of instant messages exchanged between the defendant and the minor victim, which contained details about sexual acts that only the two of them knew, was sufficient to support a finding that the messages were written by the defendant.
Fortunately for those desirous of further direction, the court of appeals’ opinion yesterday in State v. Wilkerson, __ N.C. App. __, __ S.E.2d. ___ (October 16, 2012), adds to the state’s jurisprudence and fills in the contours of the road map to admissibility.
The defendant in Wilkerson was charged with felonious larceny after breaking and entering and felonious possession of stolen goods arising from a break-in at a home in Hoke County. A neighbor reported seeing defendant’s car on the street at the time of the break-in. A police detective followed that lead to the defendant’s residence the next day. The defendant consented to a search of his car, and the detective found several of the stolen items in the trunk. In addition to this evidence, the State introduced at trial a text message sent from defendant’s phone on the day of the break-in, which read: “I got a 64 inch flat Samsung.” (The homeowner reported that a 52-inch Samsung television had been taken.)
The relevancy of the text message hinged, of course, on its having been sent by the defendant. To establish its authenticity as well as the whereabouts of the defendant on the day of the break-in, the State called as a witness a custodian of records for T-Mobile Wireless, the company that provided defendant’s phone services. The custodian provided “call details records” for the phone that was seized from the defendant the day after the break-ins. She testified that a number of calls were made from or received by the defendant’s phone on the day of the crime, starting at 10:56 a.m. and concluding at 1:24 p.m. She explained the process involved in transmitting cellular signals: calls made or received in a given area are transmitted through the closest cell tower that is not busy. She provided the times, length, and tower locations of each call. The detective who investigated the break-ins then testified that he visited each cell tower and plotted its location on a map according to the time the call was received by the tower. The calls began and ended in Cumberland County, where the defendant lived, and followed a path to and from Hoke County. The calls hit towers less than two miles away from the victim’s home.
The custodian also testified that a text message was sent from the defendant’s phone at 10:45 a.m. Pacific Daylight Time. (T-Mobile’s records are housed in Seattle, and apparently reflect West Coast time.) The detective testified that after he found the stolen items in the trunk of the defendant’s car, he took the defendant’s phone from the defendant’s pocket and searched it. He found the incriminating text message in the “sent” folder and noted that it had been sent to a number labeled “work.” On the phone itself, the message was time stamped at 2:45 p.m. on the day of the break-in.
Relying on Taylor, the defendant in Wilkerson argued that because he was not specifically named as the sender in the text message, it was not authenticated as a text message that he sent. The court of appeals rejected this argument, noting that Taylor identified only one circumstance that could satisfy the requirements of Rule 901. The court recited several methods of acceptable identification from the nonexclusive list set forth in Rule 901(b): (1) testimony from a knowledgeable witness that a matter is what it is claimed to be; (2) appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances; and (3) evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
The Wilkerson court concluded that the State presented substantial circumstantial evidence tending to show that Defendant was the sender of the text message at issue: Defendant’s car was spotted at the scene of the crime. The neighbor who reported seeing the car said the driver was using a cell phone. The day after the break-in, some of the stolen property was found in the trunk of the defendant’s car, which was parked in front of defendant’s house. The phone was taken from the defendant’s person. Several call were made and received from defendant’s phone around the time of the crime. And the text message itself referred to an item that was stolen, namely a large, flat-screen Samsung television.
Furthermore, the court noted that, similar to the proof proffered in Taylor, the State’s witnesses in Wilkerson established the time of the calls placed, the process employed, and a path of transit tracking the phone from the area of the defendant’s home to the area of the victim’s home and back.
Finally, the court rejected the defendant’s contention that inconsistent evidence about the timing of the message resulting from the difference in time zones between where the messages were sent and where the records were stored rendered the text message evidence inadmissible. The court characterized these as issues of “witness credibility” for the trial court to weigh and found nothing to indicate the trial court abused its discretion in the weighing process.
Readers, if you’ve recently navigated the process of authenticating electronic evidence, please share any wisdom you acquired along the way.
I blogged here about a new law, that prohibits texting while driving effective December 1, 2009. Texting while driving is an infraction, a non-criminal violation of the law, punishable by a $100 fine and costs of court. As one blog-reader noted, there are significant questions about how law enforcement officers will enforce the new law, given that it is permissible to enter letters or numbers into a mobile device for purposes other than texting, such as to place a telephone call or obtain driving directions. The reader suggested that perhaps the law was designed to cause drivers to “think twice” before texting while driving. Maybe so. But it remains to be seen whether the measure will reduce the practice.
And there is cause for concern if it does not. A 2008 report by the National Highway Transportation Safety Administration (NHTSA) summarizing studies of driver distraction notes that the auxiliary functions of cell phones, namely text messaging, downloading of audio and video, and gaming, are being performed largely “by drivers without fully-developed driving skills.” As a result, the report predicts a “synergistic acceleration” in the resulting safety problem.
It is worth noting that North Carolina, along with many other states, has done little to address the hazards associated with the traditional use of cell phones – placing and receiving telephone calls. While minors and school bus drivers are banned from using mobile phones while driving, subject to limited exceptions, no other restrictions apply to cell phone use by adults. This is true despite the fact that studies have shown a fourfold increase in the risk of serious crash involvement among drivers using a phone at the time of a collision.
So, what if the worst happens? While typing a text message, a driver crosses the center-line of a highway, hits another car head-on, and kills the driver of that car. What offense has the texting driver committed? Involuntary manslaughter, a Class F felony? Or is the more appropriate charge misdemeanor death by vehicle, a Class 1 misdemeanor?
Reckless driving can arise to the level of culpable negligence for purposes of an involuntary manslaughter conviction even in the absence of impairment by alcohol or drugs. See State v. Wade, 161 N.C. App. 686 (2003). But does texting while driving demonstrate the thoughtless disregard of consequences or heedless indifference to the safety of others necessary to constitute culpable negligence? It seems unlikely that a North Carolina court would find that texting while driving rises to this level of culpability, particularly given that the offense results in no license or insurance points and is not negligence or contributory negligence per se in an action for damages arising out of the operation of a vehicle.
Unquestionably, though, the texting driver has committed the offense of misdemeanor death by vehicle by violating a motor vehicle law and thereby causing the death of another person.
The New York Times reported recently about a new Utah law that punishes a texting or emailing driver who drives recklessly and causes a fatality as severely as a person who drives while impaired and causes a fatality. The law was enacted after a college student who was text messaging his girlfriend while driving his SUV to work crossed the center line of the highway and hit a sedan traveling in the opposite direction, setting off a chain of events that ended in a crash that killed both occupants of the sedan, who were scientists on their way to work.
In the Utah case, the investigating officer subpoenaed phone records that showed that the student and his girlfriend had sent 11 text messages to one another in the 30 minutes before the crash. Investigators concluded the student sent his last text when he crossed the center line.
According to the Times, Alaska is the only other state to “take a similarly tough approach to electronic distraction.” There, too, legislation resulted from a fatal accident.
It remains to be seen whether North Carolina’s new texting ban will avert such tragedy.
The News and Observer has had several interesting criminal justice articles over the past few days — including one about the great potted plant caper, available here: http://www.newsobserver.com/2932/story/1394388.html — but the one that struck me the most was this one, about “sexting”: http://www.newsobserver.com/1595/story/1393616.html.
Apparently, posting naked pictures of oneself on Myspace is soooooooo 2008. Kids who are really up-to-date simply snap pornographic pictures of themselves using their cell phones’ cameras, and then send the pictures out via text message, hence, “sexting.” (Former Detroit mayor Kwame Kilpatrick would be proud.) According to the article, sometimes “sexting” is meant to be flirtatious, and sometimes it is meant to harrass, but either way it is getting increasing attention from the police. One boy in Indiana has been charged with distributing obscenity for sending a photograph of his gentials to several female classmates, and another boy has been charged with a child pornography offense based on similar conduct. In Pennsylvania, three girls who sent racy pictures of themselves, and four boys who received them, were charged with child pornography offenses, though most have pled guilty to lesser charges. As you might imagine, there is a heated debate about whether criminal prosecutions are an appropriate response to “sexting,” with some arguing that a strong message needs to be sent to children, and others arguing that this type of conduct is best addressed by the kids, their parents, and perhaps their schools.
I am sure that if kids in Indiana and Pennsylvania are doing this, then kids in North Carolina are, too. Does anyone know of any cases like this? If so, what were the charges? There seem to be several possibilities, including dissemination of obscenity, G.S. 14-190.1, and preparation of obscene photographs, G.S. 14-190.5. Perhaps one could even charge first-degree sexual exploitation of a minor, G.S. 14-190.16, a Class C felony that takes place when one “[u]ses, employs, induces . . . or facilitates a minor to engage in . . . sexual activity for . . . the purpose of producing material that contains a visual representation depicting this activity.” “Sexual activity” includes the lascivious exhibition of genitals, so at least some “sexting” would be covered if the statute allows one to be prosecuted for “using” oneself to produce the prohibited material.
We live in a world where just about anything can be distributed to just about anyone instantaneously. This blog is one piece of that world, and “sexting” is another. Presumably, the criminal justice issues surrounding digital distribution will continue to get thornier, and more frequent, as the relentless march of technology continues.