Can Facebook messages be admitted as prior consistent statements to rebut fabrication charges? State v. Repsher Explained

The Utah Court of Appeals addressed significant evidentiary issues in State v. Repsher, involving the authentication of electronic messages and their admission as prior consistent statements. This case provides important guidance for practitioners handling digital evidence and witness credibility challenges.

Background and Facts

Repsher, a high school health teacher, was convicted of multiple sexual offenses involving a minor student. The case centered on Facebook messages between the victim and her friends discussing the inappropriate relationship. These messages were sent during high school, years before the victim reported the crimes to authorities. Defense counsel argued the allegations were fabricated after graduation, suggesting the victim and her friends conspired against Repsher years later.

Key Legal Issues

The court addressed two primary challenges: First, whether the Facebook messages were properly authenticated under Utah Rule of Evidence 901(a). Second, whether the victim’s statements in those messages qualified as prior consistent statements under Rule 801(d)(1)(B) to rebut charges of recent fabrication. Additionally, the court analyzed an ineffective assistance of counsel claim regarding the victim’s trauma-related testimony.

Court’s Analysis and Holding

For authentication, the court applied the prima facie standard, requiring only evidence sufficient to support a jury finding of authenticity. The victim’s friend testified as a participant in the conversation, identified all contributors, and provided the screenshots to law enforcement. This satisfied the foundational requirements despite defense arguments about potential fabrication.

Regarding prior consistent statements, the court applied the four-part test from State v. Green: the declarant testified, was subject to cross-examination, the statements were consistent with trial testimony, and they rebutted charges of recent fabrication. Even though the defense’s fabrication theory lacked specificity, the Facebook messages predated the alleged post-graduation motive to “get Repsher taken care of,” making them admissible to rebut the recent fabrication charge.

Practice Implications

This decision reinforces that digital evidence authentication requires only a prima facie showing, not conclusive proof. Practitioners should focus on establishing participant testimony and chain of custody early in discovery. For prior consistent statements, the ruling demonstrates that even vague fabrication theories can open the door to such evidence if the statements predate the alleged improper motive. Defense attorneys should carefully consider strategic decisions about objections, as courts will defer to reasonable tactical choices, particularly when objections might highlight unfavorable testimony or require curative instructions that draw additional attention to problematic evidence.