Ownership does not establish authorship
The explosion in texting, tweeting and other forms of electronic communication includes an exponential increase in their use by criminals and myriad problems regarding their use as evidence.
Historically, technology has advanced ahead of the law, and that especially is so regarding personal communications devices.
Prosecutors in Pennsylvania successfully have used recovered text messages to demonstrate arrangements made by drug dealers, to establish times that certain people were at certain places, and so on.
Texts, tweets and other messages also have come into play in civil matters ranging from divorce cases to workers compensation and personal injury claims.
Recently the state Supreme Court agreed to hear a case that demonstrates the need for caution regarding the use of electronic messaging as evidence, in that the owner of a cell phone or an account is not necessarily the person who might have sent an incriminating message.
At issue is the conviction of a Cumberland County woman as being an accomplice to a cocaine dealer, her brother. Evidence at her trial included transcripts of 13 drug-related text messages sent from her phone.
The Superior Court overturned the conviction, stating that there was insufficient evidence that the convicted woman actually had sent the texts. It noted that several of the texts referred to her in the third person, indicating that someone else had written those texts.
The Superior Court was on the right track. if the Supreme Court does not finalize that standard - authorship of incriminating message, rather ownership of phones, computers or accounts as the key issue - lawmakers should do so by specific statute.