Text Messages as Evidence
An estimated three billion human beings own cell phones, sending
more than a trillion text messages every year. Not all of these messages are
benign.
Standing on their own, however, outgoing text messages will
likely have no or little probative value, as their relevance will rest on their
relationship to the incoming messages.
Sometimes, when an accused is arrested, his/her cellphone
is searched, either incident to arrest or under the authority of a search
warrant (or both). And, as you might expect,
the messages and pictures on that cellphone sometimes end up as Crown evidence
in a criminal trial.
Here’s how.
Are Text
Messages Hearsay?
As with all admissibility questions, the first issue to be
addressed is the purpose for which the evidence is sought to be tendered.
Text messages are documents containing out-of-court
statements. However —
No evidence is hearsay on
its face. Admissibility depends on the purpose for which the
evidence is sought to be admitted. Evidence is hearsay — and
presumptively inadmissible — if it is tendered to make proof of the truth of
its contents.
R. v. Baldree,
2013 SCC 35 (CanLII), at para. 36.
So then, text messages are
not necessarily hearsay: it depends on the purpose for which they are tendered.
Text messages can also be admitted, for instance, as circumstantial evidence
under the documents in possession rule,
for
the non-hearsay purpose of connecting the accused to a location, transactions,
or people, or demonstrating knowledge, state of mind and so on. But where that occurs, the texts may not be used to prove
the truth of their contents.
R. v. Bridgman,
2017 ONCA 940, at para. 76.
Out-going
text messages
Hearsay is presumptively inadmissible because of the
accepted dangers arising from this type of evidence. The presumption can be displaced only where
the evidence fits within a categorical exception to the rule or satisfies the
principled exception:
R. v. Khelawon, 2006 SCC 57, at para. 42.
One categorical exception to the hearsay rule is the admissions exception.
Admissions,
in the broad sense, refer to any statement made by a
litigant and tendered as evidence at trial by the opposing party. Admissions
are presumptively admissible against the accused.
R. v. Foreman, 2002
CanLII 6305 (ON CA), at para. 37.
Outgoing text messages, assuming relevance, may be
admissible under the admission exception to the hearsay rule:
For
more on the admissions exception generally see R. v.
Foreman (2002), 62 O.R. (3d) 204 (C.A.), at para. 37, leave to
appeal refused, [2003] S.C.C.A. No. 199; R. v.
Osmar, 2007 ONCA 50, 84 O.R. (3d) 321, at para. 53, leave to appeal
refused, [2007] S.C.C.A. No. 157.
See
also Stuart O’Connell Criminal Law Blog, Rap
Lyrics as Evidence,
See for instance R. v.
Baldree, 2013 SCC 35 (CanLII).
And as incoming messages are not statements from the
accused, they do not –- without more—constitute an admission on the accused’s part. Thus, the
distinction as to whether the text messages are out-going
(being
sent from the phone) or incoming (being
sent to and received by the phone) becomes important.
Incoming
Text Messages
Incoming messages may be admissible under the documents in possession rule, a
long-standing rule which applies to paper and electronic documents alike.
The rule is designed to
permit the admission of documents in two different circumstances for two
different purposes:
1.
Admissible as Circumstantial Evidence
Documents which are, or
have been, in the possession of a party will generally be admissible against the
accused as original
(circumstantial) evidence to show the accused’s knowledge of their
contents, the accused’s connection with or complicity in, the transactions to
which they relate, or the accused’s state of mind with reference thereto.
2.
Admissible
for a Hearsay Purpose
Documents will further be
receivable against a party as admissions (an exception to the hearsay
rule) to prove the truth of their contents if the accused has in any way
recognised, adopted or acted upon them.”
R. v.
Turlon (1989), 49 C.C.C. (3d) 186
(Ont. C.A.), at p. 190;
See also
R. v. Baldree, at para. 69;
B.C. Securities Comm. v. Branch, [1995] 2 S.C.R. 3, at p. 33.
This rule is really just a
restatement of the adopted admissions
rule, with the added requirement that the document must be found in the accused’s
possession.
Adopted
Admissions
Adoption occurs only where the accused expressly or
impliedly assents to the truth of the statement. Adoption can occur by a
variety of means, including words, actions, conduct, or demeanour.
R. v.
Robinson, 2014
ONCA 63, 118 O.R. (3d) 581, at para. 48, citing David Watt, Watt’s Manual of Criminal Evidence (Toronto:
Thomson Carswell, 2013), at para. 36.04.
But just because a text message arrives on a cell phone
does not mean it has been adopted. An accused should not be rendered vulnerable
to the whims of others and messages they may send by way of electronic
communication.
Bridgman, at
para. 87, 88.
For
a classic example of an adopted admission see R.
v. Bridgman, where an individual texted the accused that he
wanted to come over to obtain drugs—which impliedly asserts that the accused sells
drugs. By agreeing to allow the person to come by, the accused impliedly
assents to the truth of that assertion. Adoptive admission.
Stuart O’Connell, O’Connell
Law Group, www.leadersinlaw.ca
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