“‘As a matter of first impression, the appellant challenged the admissibility of the text message evidence and what is necessary to authenticate a text message’ . . . blah, blah, blah . . . ‘appellant claimed there was no evidence substantiating that she was the author of the text messages or evidence that the texts were directed to her because there was evidence that another person was using her phone for some of the time. The court noted that electronic communications, such as e-mail and instant messages, can be authenticated’ . . . case citations omitted . . . and here’s the key part . . . ‘such evidence is evaluated on a case-by-case basis as any other document.’ In this case, police could not confirm that the appellant was the author. The court found that, quote, ‘authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.’”

LeMarcus has been listening throughout. “What’s the court?” he asks.

All judicial opinions do not receive the same weight. Courts directly above the trial court—in New York that means the First Appellate Division, the Court of Appeals, and the United States Supreme Court—must be followed under the legal dictate of stare decisis. Decisions from other courts are used simply as guidance.

“Pennsylvania Superior,” I say.

“Okay . . .” he says, but he might as well have said, “What’s that?”

“It’s an appellate court at least, but an intermediate one.”

“Is the case called Koch?”

I scroll to the top of the decision I’m reading. “Yeah. Commonwealth v. Koch.”

“I saw that too. You’re right, it’s good for us. But the facts in that case aren’t that close to ours. It seems like some of the texts in question there clearly didn’t come from the defendant. The opinion says that the prosecution conceded that, which seems to have cast doubt on whether the texts introduced as evidence were authored by her. And here’s more of a good news/bad news situation. The case was affirmed by the Supreme Court of Pennsylvania, but on a three-three split.”

Like the saying in baseball that the tie goes to the runner, a split in an appellate court means the lower court’s decision stands. However, it doesn’t provide the kind of judicial imprimatur of acceptance that we’re after. If anything, it goes the other way. Three members of the Pennsylvania Supreme Court would have admitted the text message even with the undisputed evidence that other people were using the defendant’s phone.