Court of Criminal Appeals of Alabama Finds Prosecution Properly Authenticated Photos of Text Messages

Similar to their federal counterparts, Alabama Rules of Evidence 901(b)(1) & (4) provide that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) TESTIMONY OF WITNESS WITH KNOWLEDGE. Testimony that a matter is what it is claimed to be.

(4) DISTINCTIVE CHARACTERISTICS AND THE LIKE. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

So, how would these rules come into play when a party seeks to introduce alleged photos of text messages? That was the question addressed by the Court of Criminal Appeals of Alabama in its recent decision in Berry v. State, 2023 WL 8658297 (Ala.Crim.App. 2023).

In Berry, Brandon Berry was convicted of murder and first-degree kidnapping. At trial,

Matthew Justin Pruitt, Berry’s best friend, testified that Berry called him on September 7, 2018, and asked for Pruitt’s help. Pruitt identified photographs that were taken by Investigator Bremmer of Pruitt’s cellular telephone, which showed text messages that Pruitt had received from Berry. A picture that had been sent in one of the text messages was a picture of a body. The message had been sent at 6:00 a.m. on Saturday, September 8, 2018.

After Berry was convicted, he appealed, claiming that the photos were improperly authenticated. In response, the court found as follows:

Rule 901(b)(1) provides that “[t]estimony that a matter is what it is claimed to be” is sufficient authentication “conforming with the requirements of this rule.” Rule 901(b)(4) provides that evidence can be authenticated by “[d]istinctive characteristics and the like,” including “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”

In addressing the authentication of electronic evidence, this Court, quoting the Idaho Supreme Court, has stated:

“‘Other jurisdictions have recognized that electronic evidence may be authenticated in a number of different ways consistent with Federal Rule 901 and corresponding state statutes. Courts have not required proponents offering printouts of e-mails, internet chat room dialogues, and cellular phone text messages to authenticate them with direct evidence, such as an admission by the author or the testimony of a witness who saw the purported author typing the message. See, e.g., United States v. Fluker, 698 F.3d 988, 999 (7th Cir. 2012). Rather, courts have held that circumstantial evidence establishing that the evidence was what the proponent claimed it to be was sufficient. See, e.g., State v. Thompson, 777 N.W.2d 617, 624 (N.D. 2010) (providing a comprehensive review of other jurisdictions’ authenticity requirements for electronic communications). Circumstantial proof might include the e-mail address, cell phone number, or screen name connected with the message; the content of the messages, facts included within the text, or style of writing; and metadata such as the document’s size, last modification date, or the computer IP address….

Additionally, “[t]he proponent of the evidence needs to establish only a reasonable probability that the document is what it is claimed to be. Once this reasonable probability is shown, any inconclusiveness over the exhibit’s connection with the events at issue goes to the exhibit’s weight, not its admissibility.”…

In Knight v. State, 300 So. 3d 76, 110 (Ala. Crim. App. 2018), this Court considered the authentication of screenshots of social-media pages when “[t]he State offered screenshots of what purported to be Knight’s social-media profile on the Facebook social-media platform” that contained pictures that supported the State’s theory of the case against Knight. This Court held that the trial court did not abuse its discretion by admitting screenshots of the social-media pages when the police detective testified that he had found the pages under Knight’s nickname, the social-media profile included pictures of Knight, and an El Camino automobile was pictured, “which dovetailed with Knight’s own admission to the detective that he wanted an El Camino.”…The police detective in Knight also testified that the screenshots had not been altered. As this Court again explained, “Rule 901 requires only a showing sufficient to indicate that the evidence is what it purports to be.”…

In the present case, Pruitt testified that the photographs in question were photographs taken of his cellular telephone and that the photographs depicted text-message conversations between him and Berry. Pruitt testified about the context of the text conversations he had engaged in with Berry. He also identified the challenged picture as a picture that had been sent to him via text message by Berry. He claimed that the photographs “fairly and accurately depict the message that [he] received from [Berry].”…Although Berry contends that the picture of Rivamonte’s body in the truck bed was not properly authenticated because Pruitt did not express familiarity with the subject matter or the accuracy of the contents of the picture that had been sent to Pruitt, the record shows that the State was not separately presenting the picture of Rivamonte’s body in a truck bed for authentication apart from the other text messages; rather, the State was presenting the picture for authentication as part of a number of purported text messages that Pruitt received from Berry in order to show that Berry had sent the picture of the dead body to Pruitt. Circumstantial evidence is sufficient to show that the evidence is what the State purported it to be, and here the evidence presented strongly indicates that the picture was indeed a part of the text messages that Berry sent to Pruitt. Therefore, the photographs of the text-message conversation, including the challenged picture within the text messages, were properly authenticated and admitted into evidence. Consequently, Berry is not entitled to relief on this claim.

-CM