Return to Sender?: Court of Appeals of Indiana Allows Authentication of E-mails, Texts Though Circumstantial Evidence

Last fall, my student (Charles White) and I published, The Social Medium: Why the Authentication Bar Should Be Raised For Social Media Evidence, in the inaugural edition of the Temple Law Review Online. The essay argued that the authentication bar should be raised for electronic evidence based upon the concerns regarding reliability and fabrication that surround it. Exhibit A for the essay could be the recent opinion of the Court of Appeals of Indiana in Harsley v. State, 2015 WL 691701 (Ind.App. 2015).

In Harsley, Mark Harsley, II was charged with three counts of invasion of privacy based on e-mails and text messages that he allegedly sent to Kimberly Harsley, his estranged wife and the mother of his daughter, despite a protection order that prohibited him from contacting her. According to the facts adduced at trial,

On January 3, 2014, Kimberly received an email purporting to be from Harsley that referenced incidents in their past and promised positive changes for the future. On January 25, 2014, Kimberly received a text message from Harsley asking her to give him another chance and not divorce him and apologizing for his previous actions. He also acknowledged that he could go to jail for having sent the message. Kimberly reported her receipt of the message to the police. Fishers Police Department Officer Chris Tucker spoke to both Kimberly and Harsley about the protection order and the message that had been sent. Harsley claimed his phone might have been hacked and denied sending the message. Harsley affirmed he understood the protection order and said he would have no further contact with Kimberly.

On February 13, 2014, another email was sent from Harsley to Kimberly asking her to open lines of communication between the two. On February 19, 2014, one final text message was sent from Harsley to Kimberly, discussing an illness that Harsley thought was serious enough to kill him and talking about a life insurance policy he wanted Kimberly to have to help provide for their daughter.

After he was convicted, the defendant appealed, claiming, inter alia, that the prosecution failed to properly authenticate the e-mails and text messages as communications sent from him. Specifically, he claimed “that some technological or documentary evidence is required in conjunction with the testimony to authenticate the email and text messages.”

As many courts have done in similar circumstances, the Court of Appeals found that the communications were properly authenticated through circumstantial evidence. Specifically, the court relied upon Indiana Rule of Evidence 901(b)(4), which allows for authentication via

Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

So, what circumstantial evidence allowed the court to reach this conclusion? The Court noted that

Kimberly testified that the emails and text messages she received on the relevant dates were from Harsley. She stated they were from an email address and a telephone number from which she had communicated with him before and that the messages contained information known only to her and to Harsley. That information included dates of his last visit with their daughter, as well as medical issues he had in the past or was dealing with at the time. Kimberly’s testimony concerning the origin of the messages and their content provided sufficient circumstantial evidence for the trial court to conclude that the emails and text message were from Harsley.

According to the court, then, text messages and e-mails can be authenticated as coming from the defendant through the victim testifying that they (1) came from phone numbers and addresses used by the defendant is the past; and (2) contained information peculiarly within the knowledge of the defendant. Therefore, despite the defendant’s claims, there is no need to produce any technological or documentary evidence actually linking the defendant to the phone number or e-mail address. 

-CM