In recent years, advances in technology have given the general public the ability to communicate faster and more efficiently than ever before. With the development of text messaging, individuals are now able to communicate through writing while maintaining the fluidity of verbal communication. As this form of communication has recently increased in popularity and use, many legal questions have arisen as to how these communications should be viewed within the law. As Liz Dailey writes in her Case Comment Sender Not Found: Text Message Evidence and the Dual Issues of Authentication, problems arise when laws do not adequately account for new technologies.

In her Comment, Dailey discusses some of the problems that can arise when admitting text messages into evidence in a court of law. In Commonwealth v. Mulgrave, the Massachusetts Supreme Judicial Court recently ruled that a text message was admissible into evidence under the excited utterance exception to the rule against hearsay. The excited utterance exception allows hearsay into evidence when it is a statement that “relates to a startling event or condition and is made while the declarant was under the stress of excitement caused by the event.” As Dailey points out, allowing text messages into evidence under this hearsay exception comes with potential problems and raises questions concerning both the authenticity of the text message and the requisite level of spontaneity for meeting the excited utterance exception to the rule against hearsay.

Dailey’s article addresses these issues, stating the Massachusetts Guide to Evidence has not kept up with current and developing technology and that it has undergone few changes since its adoption in 2008. Specifically, Dailey argues that the Massachusetts Guide to Evidence does not take into account the nuances of developing technology and that its rules were not written with the foresight necessary to determine the admissibility of evidence based in current technology. To address these gaps within the law, Dailey suggests introducing a new evidence rule into the Massachusetts Guide to Evidence that is to be used for determining the admissibility of text messages. Since text messages are distinct from both written and oral communication, it is necessary to create an evidence rule that accounts for their unique properties. She suggests that this analysis for admissibility should be focused on the “requirements of authentication and corroboration in addition to the traditional test for excited utterances defined in the Massachusetts Guide to Evidence § 803(2).” These additional requirements would adequately address the potential problems that arise when determining whether a text message may be admitted into evidence in a court of law.


Dailey’s article will appear in Volume 1  of New England Law Review – Offer of Proof


Contributing Editor: Erin Filban