Immediate and non-stop connectivity. That’s the world in which we live and work. Friends, family and co-workers are in touch with us at the drop of a hat. Our phones are on and by our side and we constantly interact with friends, family, and colleagues through Facebook, Gmail, and the like. This digital world and technology revolution have sparked new legal concerns. For example, your cellphone – it isn’t so simple. It is really a mini-computer, camera, e-mail system, document repository, and yes, even a mobile phone. All this raises privacy issues, search and seizure problems, cloud access discovery problems and new arguments on which Massachusetts Courts must rule, including access to and use of text messages as evidence.
A recently adopted law that applies on the North Shore and throughout Massachusetts makes it illegal to text while driving. M.G.L. ch. 90, § 13B. Just what is a text? It is “a piece of digital communication that is designed or intended to be transmitted between a mobile electronic device and any other electronic device.” M.G.L. ch. 90, § 1.
Now, what does all that mean? Let’s look at an example:
Say you were driving into Boston, heading to a Bruins game after work and are hit by a car pulling out of the Square One Mall or perhaps the North Shore mall. Through discovery, your injury attorney learns that the other driver sent an instant message to his best friend about meeting up at a pub outside Faneuil Hall. Showing this message to the jury can be really helpful to your claim as it may show that the driver was not paying attention when he or she crashed into you. You will want an experienced accident lawyer who knows how to get access to that message and then get it allowed as part of your injury case.
An instant message must be authenticated for the Judge to allow it during the trial. It is authenticated when facts are admitted that show the message is what the proponent claims it is. (“Lawyer speak” – sorry). See Massachusetts Guide to Evidence (2014). The major hurdle for authenticating an instant message, text message or e-mail, is the challenge of proving who sent the message, not just which phone or computer sent it. For the judge to allow an instant message to be used in Court, your lawyer must first prove that it was sent by the driver who caused the car accident.
That the instant message was sent from the driver’s account is not enough. Massachusetts courts have ruled that “evidence that the defendant’s name is written as the author of an e-mail or that the electronic communication originates from . . . Facebook or MySpace…” is not conclusive. Commonwealth v. Purdy, 459 Mass. 442 (2011). There must be something extra that shows the driver sent the message, such as:
- the message contained a photo that was only located on the driver’s phone or
- the driver did not have access to the messaging program on another device or computer.
It is up to your lawyer to supply these corroborating facts, usually through a witness or electronic proof. Your lawyer must know how to find and prove the source of the message. Sometimes locating the source will require an expert that knows and is able to use forensic skills. Proving a text was sent and the source of the text for trial are new skills, changing as our lives become more technically complicated.
Technology is changing the way the world works, and Massachusetts injury law has not been left untouched.