Burrows’s point is a simple one—the standard is whether there are indicia of reliability that the owner of the phone sent the text message. If there is, the text should be admitted. If not, it should be excluded.

Judge Gold lets him speak for about ten minutes without interruption. When it’s my turn, I take just as much time, with more of it devoted to the facts in the Pennsylvania case than I had originally planned. I emphasize that case represents the rare exception on the admissibility of text messages, and the judge there only excluded them because there was clear and uncontested evidence that someone other than the owner of the phone had used the phone, which is not the case with Dana’s texts.

“And even in that situation, the Pennsylvania Supreme Court deadlocked on whether that decision was correct,” I say. “Now compare that case with the one here. There is absolutely nothing to indicate that anyone other than Dana Goodwin sent the text message to Ms. Wright. There are no other messages on Ms. Goodwin’s phone that were sent by others, which makes this fact pattern completely different than the scenario in the Pennsylvania case. And the only evidence that Ms. Goodwin did not have possession of her phone at the time of the messages is the say-so of the defendant. In other words, Your Honor, if you exclude the text message in this case, then I don’t see how a text message or an e-mail is ever going to be admitted in any case. All it would take is exactly what the defense is doing here: making a bald claim that someone else might have had access to the phone.”

Judge Gold is as solicitous of me as he had been of Burrows. When I’m finished making my argument, he says, “Thank you both. This issue quite clearly turns on the proof. I might hear evidence on that later, but for our purposes now, I’d like a proffer from you, Mr. Burrows, on what your witnesses will say regarding the access to Ms. Goodwin’s phone.”

A proffer of proof is a free shot for Burrows. He gets to summarize what his witnesses will say. I’ve never heard a proffer that came close to the nuance of actual testimony, especially after cross-examination.