Two Recent Maryland Decisions on Authentication of Text Messages

Sykes v. State, 2021 WL 5366047 (Md. Ct. Spl. Apls. Nov. 18, 2021), and Burks v. State, 2021 WL 1747943 (Md. Ct. Spl. Apls. May 3, 2021), address authentication of text messages in criminal cases.

In Sykes, the cell phone was seized from the defendant after he was seen making a call on it.  There were also email accounts in defendant’s name on the phone.  In Burks, the proponent recognized the sender’s telephone number, and the texts contained facts known only to the defendant and the victim.  “That’s his phone, his number….  who else would be texting me, ‘Do you feel like I took advantage of you?’”  That sufficed.

I have discussed the predicate cases, State v. Sample, 468 Md. 560 (2020), and Sublet v. State, 442 Md. 632 (2015), in “Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media – E-Discovery LLC (ediscoveryllc.com) and I discussed authentication in Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104 – E-Discovery LLC (ediscoveryllc.com)

In Sykes, two people were arrested after police discovered CDS in a car.

During Sykes’s arrest, police officers observed Sykes using a cell phone, which police later determined to have sent and received text messages concerning the sale of narcotics in the ten days prior to the arrest. At Sykes’s trial and over his objection, the State introduced those text messages into evidence and called an expert in narcotics investigations to testify about the consistency of the messages and other evidence with patterns of drug distribution.

The cell phone was seized during the arrest.  On appeal, Sykes challenged admissibility of the texts.  The appellate court affirmed the conviction.

The officers also applied for and obtained a search warrant for the cell phone that was taken from Sykes. Investigators downloaded the emails, text messages, social media conversations, and other data stored on the cell phone into an extraction report. The earliest extracted text messages dated back to 2012. The State created a printout with 691 text messages sent or received in the ten days prior to Sykes’s arrest—between June 27, 2016 and July 6, 2016.

Sykes asserted that “the State failed to demonstrate authenticity, the text messages contained hearsay, and the text messages were irrelevant and prejudicial.”

The State argued that the phone was authenticated because it had been taken from Sykes’s person, numerous email accounts accessed on the phone contained the name Brandon Sykes, and the officers on the scene who seized the phone as well as the officer who conducted the extraction of the text messages were available witnesses for the State. The State also argued that the text messages fell under numerous hearsay exceptions.

Discussing authentication, the Court wrote:

For electronic evidence, we utilize the “reasonable juror” test, and ask whether a reasonable juror might find more likely than not that the evidence is what it purports to be.  State v. Sample, 468 Md. 560, 597, 599 n.20, 228 A.3d 171 (2020). The standard, then, is by a preponderance of the evidence.  Id.

It stated that there was evidence that the phone belonged to Sykes:

At trial, both Officer Westerfield and Officer Chinn testified to seeing Sykes use the cell phone at the time of arrest. Officer Chinn further testified that he saw Sykes take the phone from his pocket, unlock it, and place a phone call. Such possession and use are consistent with ownership. The officers’ testimony provided sufficient evidence for the circuit court to conclude that a reasonable juror could find that the phone was what the State purported it to be—a cell phone belonging to Sykes….  Additionally, a reasonable juror could find it more likely than not that the outgoing text messages extracted from that cell phone were sent by Sykes.

After an analysis of Sample, the Court wrote: “Here, the evidence that the phone belonged to Sykes ‘in and of itself’ constituted strong evidence that he authored the outgoing text messages.”  This was corroborated by other evidence, including expert testimony.

The intermediate appellate Court emphasized that “the standard for authentication of electronic evidence is by a preponderance of the evidence, meaning ‘more likely than not’….” Because “there was sufficient evidence to conclude that a reasonable juror could find, by preponderance of the evidence, that Sykes owned the cell phone,” it affirmed the gatekeeper’s determination of authenticity, holding that the evidence was properly submitted to the jury.[1]

Burks involved sexual abuse of a minor.  The child’s mother “was monitoring S.’s cell phone and discovered messages from appellant to S. via the ‘Kik’ messenger app.”  The mother was particularly startled by the suggestive content of one message.  Burks “denied sending the Kik message about the shorts, stating that he used the app to communicate with the football players he coached, and they had access to his phone on that day.”  There was also another string of text messages between Burks and the minor.

On appeal, Burks asserted a failure to authenticate the messages, claiming that there was no showing that he had sent the texts.  The appellate court wrote that “a message alleged to have been digitally sent or received, whether as a text on a cell phone or as a ‘direct message’ through a social media platform, may be authenticated by ‘evidence sufficient to support a finding that the matter in question is what its proponent claims.’”  It quoted examples from Md. Rule 5-901 and the Court’s gatekeeper role under Sublet and Sample.

At trial, the minor was asked how she knew the texts were from Burks: “That’s his phone, his number….  who else would be texting me, ‘Do you feel like I took advantage of you?’”  She said that she had received texts from Burks before.  “S. further testified that appellant previously had called her from that same phone number.”

The appellate court held that there was sufficient circumstantial evidence to support authenticity.  “S. testified that she received the message from the phone number associated with appellant, the same number from which she had received previous texts and phone calls from appellant….  Moreover, the text messages referenced matters that only S. and appellant would know about, including when appellant put his hand in S.’s shirt. The court did not abuse its discretion in admitting these text messages.”

As to another text, the mother “responded that the message was from appellant, noting that his name and photo were on the message.”

Ms. Pascal testified that she knew the message was from appellant because it had appellant’s name and photo on it. Moreover, the contents of the message itself, a request to “come downstairs” wearing a certain article of clothing, was consistent with the text coming from appellant, whose room was in the basement, to S., whose room was on the top floor of the same house.

This evidence was sufficient for authentication, and there was also some additional testimony that buttressed the conclusion.

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[1] A number of other issues were also addressed in both cases.