The Massachusetts Appeals Court yesterday affirmed a defendant’s conviction for multiple counts of child rape that were based, in part, on the defendant’s confessions during an instant messaging (“IM”) chat with one of the prosecution witnesses. The name of the case is Commonwealth v. David Oppenheim.
The defendant and his wife founded and operated a community theater in Easthampton. The defendant served as the chief executive of the theater and taught acting classes. Two of the defendant’s former students testified at trial that during their acting lessons with the defendant, he had convinced them to perform various sex acts in order to improve their acting skills. Other witnesses testified that the defendant had propositioned them.
The defendant completely denied the charges. He and his wife both testified that he did not have the opportunity to have sex with his students, given the ongoing presence of students and volunteers in the theater. Their stories were supported by other students of the theater who testified on behalf of the defense. The jury convicted the defendant of multiple counts of child rape for his sexual relationship with one of his students.
One of the Commonwealth’s witnesses was a student from the theater who struck up a friendship with the defendant. While the defendant proposed having a sexual relationship with this witness, it appears that they only kissed. At some point, the defendant opened a new online account, along with a new online name, to hide his identity while he participated in IM chats with the witness. It was during one of those chats that the defendant admitted to seducing the victim when she was 14 years old and carrying on a sexual relationship with her. The defendant later repeated his confession to the witness during an in-person conversation that occurred at the theater.
The prosecutor sought to admit the IM chat transcript at the defendant’s trial. The defendant objected, arguing that it was impossible to authenticate the messages and to prove that the defendant had authored them. The witness testified that she was convinced that the defendant had written the messages based on their tone and language (which were consistent with the manner in which the defendant would talk to her). The witness also said that the messages contained details about prior in-person conversations that she had shared with the defendant.
The trial judge allowed the messages to be introduced to the jury, and the Appeals Court upheld her decision. The Appeals Court ruled that when these types of messages are introduced at trial, the jurors must be instructed that before they can consider the messages’ content, they (the jurors) must be satisfied by a preponderance of the evidence that the defendant was the author. The Court approved of the introduction of the messages in part because of “confirming circumstances” that corroborated their authenticity. Because the witness in this case was able to identify the defendant’s messages based on their tone and his references to their prior conversations, it was reasonable to believe that the defendant had written them.
This is the type of case that trial courts and appellate courts will be grappling with for the foreseeable future. Technology has allowed us to interact with each other in many different ways, using many different communication devices. The question of who is truly writing and sending messages will become more difficult as the technology becomes more advanced. This decision is a preview to the technological issues that may grow to dominate the dockets of appellate courts.