Authenticating Pictures of Text Messages-Is a Picture Worth 1000 Words? A Look at Abernathy v. Alabama.

In the Alabama Court of Criminal Appeals case Abernathy v. Alabama (CR-21-0275), the court addressed the authentication of pictures of text messages displayed on a cell phone. While the court affirmed the trial court’s admission of the State’s images over objections by the defendant, do not assume other rulings will be the same because the trial court has “considerable discretion” in admitting electronic evidence, which means the decision could easily have gone the other way. From a forensic standpoint, pictures of text messages displayed on a screen are about the least reliable form of such evidence imaginable, and this case raises significant concerns regarding digital evidence, particularly as the ability to alter or fabricate evidence increases. Despite that, pictures of the text messages got the job done here, so maybe it can be said that a picture is worth a thousand words.

Case Background and Evidence Recovery

Abernathy v. Alabama arises from a capital murder case. At trial, the State introduced evidence that an investigator recovered a cell phone from a vehicle that wrecked during a police chase. The investigator viewed text messages on the phone’s screen, took photographs of those messages, and later testified that the pictures fairly and accurately depict the text messages she saw on the device. The owner of the phone was blind and unable to view the pictures or the text messages themselves. However, she testified about the general tenor and subject of the messages she had received, offering context that supported their admission.  Several photographs depicting the text messages were admitted into evidence over the defendant’s objections, which were based on authentication and hearsay concerns. Specifically, the defendant argued that “’[i]nstead of seeking to authenticate the text messages through the extraction report, through a telephone service provider, or through [the phone’s owner], the State sought to authenticate text messages contained in photographs through’… ‘an investigator who…was in no position to authenticate the cell phone or the messages themselves.’” P. 38. The phone indicated that the messages were from a contact labeled “Donnie,” with a signature line of “Mackenzie’s Daddy.” Notably, the defendant was known as Donnie and had a daughter named MacKenzie, so the State argued that the distinctive characteristics authenticated the messages. The trial court admitted the photographs over objections, and the Alabama Court of Criminal Appeals upheld the ruling.

Analysis and the Court’s Reasoning

Abernathy  emphasizes the court’s “considerable discretion” and the “low bar” for authenticating electronic evidence. The court emphasized that “the hurdle for authenticating text messages is not high,”  (p.41), and decided that the investigator’s testimony that the photographs accurately depicted the messages she observed, combined with the circumstantial evidence of the “Donnie” contact name and “Mackenzie’s Daddy” signature, met the threshold for Rule 901.  Notably absent from the opinion is any discussion about particular attacks as to authenticity, such as claims that the text messages were incomplete, inaccurate, had been altered, or some similar reason they should be doubted. The opinion also does not discuss the chain of custody regarding the device or the pictures, and only obliquely indicates that a forensic extraction of the device had been performed. Nothing indicates the defendant worked with a forensic examiner to review or challenge the evidence. Ultimately, the court held that the State met its burden for showing that the evidence was what it was purported to be.

Comparison to Lorraine v. Markel

The Abernathy case can be compared to the federal case Lorraine v. Markel (241 F.R.D. 534, D. Md. 2007), where Judge Paul W. Grimm provided a comprehensive framework for authenticating electronic evidence under Federal Rule of Evidence 901. Judge Grimm emphasized that the burden for authentication depends on the context and type of electronic evidence. He discussed two dramatically different burdens that can be required for authenticating electronic evidence, essentially saying “luck be with you” if the court requires a low burden, but the better plan is to prepare for a more stringent burden for authenticating electronic evidence, especially if the opposing party mounts a significant challenge to admissibility.

Key Takeaways and Practical Implications

(1) Abernathy could have just as easily gone the other way, given the trial court’s “considerable discretion.” That is, the court’s discretion cuts both ways, so a court could exercise that same discretion to exclude it if the authentication is deemed insufficient. If the evidence is critical to a case’s outcome, counsel must prepare accordingly.

(2) Begin thinking from the outset about how electronic evidence, especially “under the hood” evidence that cannot be predicated via a device user (i.e., a witness with knowledge), is going to be admitted (or attacked).

(3) Do not forget “unknown unknowns.” Could the investigator have shown: that the text messages had been seen by the receiving user; had not been changed after being sent; that important contextual text messages had been deleted before the phone was recovered; that the messages were not actually relating to a synced device rather than the recovered device; that the images were not AI generated; etc.? A forensic examination of the device could yield game-changing information, quite likely not displayed on the phone’s screen.

(4) Educate the judge regarding the integrity of any electronic evidence crucial for the case, particularly in order to challenge electronic evidence. A forensic examiner can be a very good investment here.

(5) A better option is to rely on forensic collection methods whenever possible. Although the investigator’s recovery of the phone and contemporaneous documentation of the messages likely strengthened the prosecution’s case, forensic tools that preserve metadata, establish chain of custody, and verify the integrity of digital evidence can provide a  much stronger foundation for admissibility. A forensic examiner can help prepare for and respond to attacks regarding authentication.