Same Court, Different Day, Different Result: Images of Text Messages Not Authenticated

My last blog post discussed Abernathy v. State, in which the Alabama Court of Criminal Appeals affirmed the trial court’s ruling that the state sufficiently authenticated text messages through  pictures of them introduced by an investigator who was a third-party not involved in the text exchange. A witness with knowledge, who was blind, testified that the messages introduced generally sounded like text messages she had received. Given the trial court’s discretion on evidentiary rulings, the takeaway in my mind was not to rely on authenticating messages using images of them because the court could have excluded them just as easily. https://www.inveniusforensics.com/post/authenticating-pictures-of-text-messages-is-a-picture-worth-1000-words-a-look-at-abernathy-v-alab

May I introduce Glenn v. Alabama (CR-2025-0085), an Alabama Court of Criminal Appeals case that held exactly the opposite just weeks later: screenshots of text messages, emailed by a participant in the alleged exchange to an officer, were not properly authenticated when introduced by the officer.

Glenn is an appeal from a probation revocation hearing. At the hearing, the state presented the testimony of law enforcement officers to establish the probationer’s violations. While the rules of evidence do not strictly apply to a probation revocation hearing, the state must bolster hearsay evidence with non-hearsay evidence to meet its burden. After holding that the other evidence presented at the hearing admitted was hearsay, the Court of Criminal Appeals discussed a series of text messages, purportedly between the probationer and a victim of an assault by the probationer. The complaining victim had taken screenshots of the text messages and emailed them to the officer, who introduced the screenshots at the hearing. The complaining victim did not testify.

The Court of Criminal Appeals held that admitting the screenshots was error and was one of the court’s reason for reversing the trial court’s probation revocation. The Court of Criminal Appeals did not really even get to the hearsay issues surrounding the text messages:

[T]he State could show that the text messages were ‘nonhearsay evidence’ only by showing that the messages were actually from Glenn, a party opponent. Thus, the State could present sufficient nonhearsay evidence to support the revocation of Glenn’s probation only by authenticating the text messages. However, the State did not introduce any evidence to show that the text messages were, in fact, Glenn’s messages.

(Citations omitted). Glenn at p.12. The crux of the evidentiary defect, and an issue in any attempt to introduce digital evidence by someone without knowledge, was:

[although the officer] testified that the messages were an exchange between [the alleged assault victim] and Glenn, [the officer] lacked any personal knowledge that any message was, in fact, Glenn’s statement.

Glenn at p. 11. In other words, the State could not connect the text messages to the appellant’s device via the officer’s testimony.

So here we have two cases, literally a few weeks apart, in which the same court upheld the admission of pictures of text messages but then found error in admitting screenshots of text messages without a witness with knowledge. Is there case law supporting both outcomes? Yes. Are both rulings within the court’s discretion? Yes. Is this a good plan for admitting digital evidence? That’s your call. But remember the knight at the end of Indiana Jones and the Last Crusade: “He chose…poorly.”

If the evidence is important to your case, follow Judge Grimm’s suggestion in Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007), and prepare for the most stringent standard applicable for authentication. Using proper tools and techniques, you are more likely to authenticate digital evidence through a digital forensic examiner using proper tools and techniques than a lay witness with screenshots or pictures can.