Advocates for Justice

Text messages are gold. They are typically sent without the forethought of a letter or email, so they typically reveal persuasive evidence of the sender’s mental state at the time the message is sent. Relevant texts between the parties are coming in. But texts to a third party present special issues of authentication. This article discusses those issues.

A text message is a writing that must be authenticated. (Evid. Code §§ 250, 1401(a).) Authentication requires a showing that the writing was made or signed by its purported maker. It’s important to remember that the maker’s testimony is not necessary. (Evid. Code § 1411.) Instead, authenticity may be established by the contents of the writing (Evid. Code § 1421) or by witness testimony, circumstantial evidence, content, or location. (People v. Goldsmith (2014) 59 Cal. 4th 258, 268.) The recent published case of Adoption of X.D. (2025) WL 2753550 addresses self-authenticating writings.

I have previously written about the framework for analyzing Sanchez issues, and I explained that the answer turns on the difference between “background information” and “case-specific facts.” Last week, our Supreme Court reaffirmed that “the distinction between case-specific facts and background information thus is crucial—the former may be excluded as hearsay, the latter may not.” (People v. Veamatahau (2020) 9 Cal.5th 16, 26.)

Since our Supreme Court decided People v. Sanchez (2016) 63 Cal.4th 665, lawyers and judges have struggled to understand its implications. I recently opposed a motion in limine titled “Defendant’s Motion to Preclude Expert Opinions Based on Hearsay (People v. Sanchez).” The caption alone showed that opposing counsel had not overcome that struggle.