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Text messages inadmissible evidence: Pennsylvania Appellate Court says text messages were hearsay and not authenticated

Hello everyone and welcome to this edition of the Ethics Alert.  This Ethics Alert will discuss the September 16, 2011 Pennsylvania Appellate Court opinion which reversed and remanded a criminal conviction after finding that text messages were inadmissible hearsay and lacked authentication and could be used as evidence in a criminal case to show that the defendant intended to sell drugs.  The case is Commonwealth of Pennsylvania v. Amy N. Koch (2011 Pa. Super 201, September 16, 2011).

The facts of the case are briefly as follows:  After law enforcement received a tip from a confidential informant that the defendant was selling marijuana, a drug task force obtained and executed a search warrant at her residence.  During the search, the police found marijuana and two cell telephones, one of which the defendant admitted was hers.  The cell telephone was then analyzed and the relevant text messages were located and transcribed.  The defendant was charged with possession with intent to deliver marijuana and possession of a controlled substance (marijuana) as an accomplice.

Prosecutors offered thirteen “drug related” text messages as evidence at trial to show intent.  The defendant’s lawyer objected on hearsay and lack of authentication grounds stating that there was no evidence presented that the defendant was the author of the drug-related text messages or that the texts were sent to her since there was evidence that another person was using cell telephone during at least some of the relevant time.  The defendant was convicted of the charges in July 2010 and she appealed the conviction.

The appellate court found that the text messages were improperly admitted.  The opinion noted that the drug-related text messages had delivery dates and times; however, the “facts” within the test messages were being presented as true and to prove the defendant’s intent to sell drugs but there was nothing introduced to authenticate the messages and show that the defendant sent them and the cell telephone had also received other messages addressed to third parties.  After discussing the Pennsylvania Wiretap Act, the opinion also found that the text messages were out of court statements introduced to prove the fact that the defendant intended to sell the drugs and do not fall within any exceptions to the hearsay rule.  The court reversed the conviction and remanded the case for a new trial.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.





My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.

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If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at [email protected].  You can find my law firm on the web at  In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

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