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Florida Fourth DCA rules that text messages could be authenticated through circumstantial evidence even though there was no direct evidence identifying the sender

On October 7, 2020, in State of Florida v. Torres, Mo. 4D20-225, the Florida Fourth DCA held in a criminal sexual molestation case that text messages the minor victim allegedly received from the defendant could be admitted in evidence even though there was only circumstantial evidence that the defendant was the sender.  The circumstantial evidence consisted of the victim’s testimony that she knew it was the defendant because the content of the messages included information that only the defendant would know.  The trial court granted the defendant’s motion in limine to exclude the evidence, notwithstanding the prosecutor’s proffer that authentication from the corporate provider of the messaging application was unavailable because the Canadian company would not comply with a U.S. subpoena.   In reversing the trial court, the Fourth DCA acknowledged that testimony that a person received a text or e-mail from another is not sufficient, by itself, to authenticate the identity of the sender, citing Charles W. Ehrhardt, Florida Evidence § 901.1a, at (2020 ed.), but indicated that other factors can circumstantially authenticate messages.  Supporting authority cited by the Fourth DCA included United States v. Siddiqui, 235 F.3d 1318, 1322–23 (11th Cir. 2000) (finding that a number of factors supported the authenticity of the e-mail: the e-mail bore the defendant’s address and when the witness replied to the e-mail the “reply function” of the witness’s e-mail system automatically put the defendant’s address as the sender; the context of the e-mail showed details of the defendant’s conduct and an apology that correlated to the defendant’s conduct; and the e-mail referred to the author by the defendant’s nickname and the witnesses confirmed that in phone conversations the defendant made the same requests as in the e-mails); and State v. Love, 691 So. 2d 620, 621 (Fla. 5th DCA 1997) (even when messages are not obtained directly from the sender’s phone, electronic communications, like other traditional communications, “may be authenticated by appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances”).

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