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BENCH BLOG: Case answers the call re: text message authentication

By: Jean DiMotto//August 10, 2016//

BENCH BLOG: Case answers the call re: text message authentication

By: Jean DiMotto//August 10, 2016//

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Judge Jean DiMotto retired in 2013 after16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at jeandimotto@gmail.com
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected].

The Court of Appeals recently tackled the timely issue of what constitutes evidentiary authentication of cell phone text messages.

To a lesser extent, it also dealt with the insufficiency of a Shiffra motion in attempts at gaining access to a victim’s mental-health records.

Background

Giancarlo Giacomantonio was the stepfather of a teenaged girl. He was separated from his wife and living in a separate room in the home.

The girl attempted suicide about one month after the defendant began sexually exploiting her. Thereafter, she entered counseling.

Her mother had suspected sexual abuse between her husband and her daughter, but it was not until 9 months after the suicide attempt that she discovered some “alarming texts” on her daughter’s cell phone. The mother had access to the phone’s contents because the phone didn’t have a lock.

The mother took the phone to the Whitefish Bay Police Department. There, with the consent of the girl and her mother, the detective searched the phone in order to investigate a possible crime.

He found text messages saying, “I want my booty” and “I want my boty [sic].” No records of the text messages were available from the telephone company, so the detective took seven screenshots of the messages and made photocopies of them for use at trial.

Pretrial motions

After being charged with sexual exploitation of a child and incest, Giacomantonio brought a pretrial motion to preclude use of the photocopied screen shots of the text messages. He argued that the screen shots could not be authenticated, were unoriginal and were hearsay.

Milwaukee County Circuit Judge Stephanie Rothstein denied the motion, as did Judge Jeffrey Wagner, who subsequently presided over the trial.

Giacomantonio also brought a Shiffra/Green motion to gain access to the girl’s counseling records, but Judge Rothstein rejected his motion as failing to establish a sufficient basis for an in-camera inspection. He then filed a petition for a permissive appeal of this ruling, but the petition was denied by the court of appeals.

Text messages testimony

At trial, the detective identified the two phone numbers associated with the text messages, although not to whom they belonged. He was allowed to read seven text messages to the jury, which included dates, times and messages such as “come to my room,” “I want my booty today” and “I want my boty.”

The victim identified the phone numbers as belonging to her and the defendant. She testified that the defendant would often text her “to go to his room late at night.” She understood this to mean that he wanted to touch her.

She also testified that he texted her “all the time” about her “booty” which she understood to be her genitals and buttocks. If she sent him pictures of these body parts he would not withhold affection nor prevent her from seeing her friends, and instead would be lenient with her and provide her and her friends with alcohol.

Giacomantonio was convicted of sexual exploitation of a child. He appealed.

Court of Appeals

The defendant again argued that the photocopied screen shots of text messages could not be authenticated, violated the best-evidence rule, and, when recited to the jury by the detective, were hearsay.

In an opinion written by Judge Kitty Brennan, the court first noted that electronic correspondence does not involve a different or stricter standard for authentication than required by the statute. Under sec. 909.01, a matter is authenticated if there is evidence sufficient to support a finding that it is what its proponent claims it is.

Here, the detective’s testimony authenticated that the screen shots were accurate in representing what he saw on the phone. As the recipient of the texts, the victim identified the phone numbers and other surrounding circumstances of the messages. And the very language used in several of the texts helped to authenticate them as originating from Giacomantonio.

As for the best-evidence rule, the court determined that the screen shots fit the definition of “original” in sec. 910.01(3). Since a cell phone is a “computer or similar device,” the screen shots were “output readable by sight,” and according to trial testimony, the screen shots accurately reflected the data.

Lastly, on the hearsay issue, the detective’s recitation of the content of the screen shots was not hearsay proving the truth of the text messages — this was done through the victim’s testimony. Rather, the recitation provided the foundation for what led him to open an investigation in response to what he saw on the phone.

Moreover, after the detective authenticated the screen shots, they were entered into evidence as exhibits, and “the detective’s reading of them was nothing more than merely reading a document.”

Commentary

The case deftly handles the evidentiary issues involved in using text messages at trial. It provides clarity in analyzing the use of this modern technology in criminal cases, which easily translates to application in non-criminal cases.

Secondarily, the court provides a good discussion on what fails to qualify as a sufficient showing for a defendant to obtain an in-camera review of a victim’s mental health records. The Shiffra/Green standards were emphasized and properly applied at both the trial court and appellate levels.

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