Supreme Court of Georgia Finds Testimony About Text Messages Didn’t Violate Best Evidence Rule

Similar to its federal counterpart, Section 24-10-1004(1) of the Georgia Code provides that

The original shall not be required and other evidence of the contents of a writing, recording, or photograph shall be admissible if:

(1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith

This provision of the Best Evidence Rule is a big reason why evidence is almost never excluded under the Rule. A good recent example can be found in the recent opinion of the Supreme Court of Georgia in Tucker v. State, 2025 WL 515739 (Ga. 2025).

In Tucker, “Deangelo Tucker was convicted of murder and other charges for the shootings of Nathaniel Lowe, Rondelrick Dukes, and Leonard Guffie, and the resulting death of Lowe.” At trial,

Shaquitta Smith, Lowe’s stepmother, testified that Shameka Smith – her niece and the mother of two of Tucker’s children – told her that she had information about the murder. Specifically, Shaquitta testified that sometime after Lowe’s death, Shameka showed her text messages where Tucker had texted Shameka to “turn the GPS off” on her phone. Once she had, Tucker texted that he just “wet up three people … and that one of them was killed” and that he “was there to try to help a friend.” Shaquitta informed Detective Summer Benton about the text messages on November 22, 2014.

Detective Benton testified that Shaquitta said that she believed “preempted robbery” was a possible motive for the shooting. She said that, according to Tucker, he understood that Lowe and his friends were going to rob Tucker, so he felt it necessary to rob them first. Detective Benton later spoke with Shameka directly. Shameka described the text messages that she had received from Tucker on the night of the shooting. She also offered that Tucker was “well aware” that iPhones could be tracked and that is likely why he asked her to turn her GPS off. The text messages were never recorded, and Shameka told Detective Benton that she had lost her cell phone by that point. Shameka also told Detective Benton that Tucker had held her “at gunpoint” because he “was extremely upset with her that she had gone to the police about him.”

On appeal, Tucker claimed that testimony about the text messages violated the Best Evidence Rule, which, subject to certain exceptions, requires a party seeking to prove the contents of a writing, recording, or photograph to produce the original  or a duplicate. Of course, the biggest exception is Rule 1004(1), which applied in Tucker’s case. According to the court,

The trial court did not commit a “clear or obvious” legal error when it allowed the State to introduce evidence about the content of the alleged text messages between Tucker and Shameka. The best evidence rule provides that, “[t]o prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required.” OCGA § 24-10-1002. An exception to this rule, however, is found in OCGA § 24-10-1004 (1): “The original shall not be required and other evidence of the contents of a writing, recording, or photograph shall be admissible if…[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith[.]”

On December 31, 2014, Shameka told Detective Benton that she had lost her cell phone before Benton had the chance to see the text messages in question, and both testified to such at trial. The State was also unable to access Tucker’s iPhone to obtain the messages from his end. The State, therefore, showed that the original text messages were lost, and no evidence was presented that Shameka’s phone or the text messages were destroyed by the State in bad faith. Tucker has failed to show error, much less plain error, in admitting evidence about the content of the text messages under OCGA § 24-10-1004 (1). 

-CM