Massachusetts Appeals Court Upholds Witness Intimidation Conviction Related to Text Message Threats

The Massachusetts Appeals Court today affirmed the witness intimidation conviction of a man who sent threatening text messages to his ex-girlfriend imploring her not to testify against him in court.  The name of the case is Commonwealth v. Alden. 

The defendant had an open criminal case in January of 2015 and his ex-girlfriend was a potential witness against him.  As the defendant’s trial was approaching, the ex-girlfriend began receiving text messages from a phone number she knew belonged to the defendant.  She and the defendant had exchanged text messages from that phone number for more than a year.  The defendant texted the ex-girlfriend that she would “be sorry” if she went to court, and he would have people go after her.  The defendant further ordered the ex-girlfriend to keep her mouth shut and suggested she commit suicide.  Finally, the defendant told the ex-girlfriend she should “leave their personal stuff out of the courtroom” and said if she testified it would be the biggest mistake she ever made.  When the police learned about the text messages, the defendant was charged with intimidation of a witness.  At trial, the defendant denied he was the author of the threatening text messages.  He told the jury his aunt had bought his cell phone (where the messages originated) and the phone was shared with the defendant and six other people who lived in the same home.  The cell phone did not have a password and, according to the defendant, everyone in the residence had access to it.  After the jury found the defendant guilty, he appealed and the Appeals Court affirmed.

The question presented to the Appeals Court was whether the text messages admitted at the defendant’s trial had been properly authenticated.  In the last several years, courts have been grappling with the circumstances under which messages exchanged electronically or by way of social media can be admitted in court.  In Massachusetts, the Supreme Judicial Court concluded in a case named Commonwealth v. Purdy that in order for an electronic communication to be admissible in court, the trial judge must first determine that a reasonable jury could find by a preponderance of the evidence (more likely than not) that the defendant wrote the message.  (The assistant district attorney who tried Purdy was former Spring & Spring partner Meghan Spring.)  It’s not enough that a communication simply comes from an account connected to the defendant’s name.  The judge must find there are “confirming circumstances” that would allow a jury to believe the message was created by the defendant.  In this case, the judge found confirming circumstances based on the following facts: when the ex-girlfriend had called the subject phone number in the past, the defendant had answered; when she scheduled a meeting with the defendant by way of text message to the number, he appeared; and, perhaps most importantly, the content of the messages themselves suggested the defendant was their author.  After all, the messages warned the ex-girlfriend to keep her mouth shut and not testify in court, and the defendant was the accused in an upcoming criminal trial where the ex-girlfriend was scheduled to testify.  It was therefore proper for the trial judge to rule that a reasonable jury could find by a preponderance of the evidence that the defendant had written the threatening text messages.