Can Texts be Admissible in a Court of Law?
Text messages are generally considered to be fair game as evidence in divorce court. They are treated just like email or a physical letter. In fact, many of the same rules that apply to the admissibility of emails also apply to text messages. If they are available and can be authenticated (or verified), there is no reason a document that was transmitted via text cannot be used as evidence. If they contain social media posts or photos, they can be treated like any other photo or post on social media . It essentially comes down to whether or not connecting the dots between what you have and its source is possible.
As a quick refresher, when assessing whether a text message is admissible in divorce court the following will usually be required:
How the text messages could impact your case is important to consider during your strategy development. While not a hard and fast rule, lawyers typically give more credence to text messages as evidence of someone’s state of mind or intent.
Legal Considerations for Texts as Evidence
Before your text message can be used as evidence there are several legal requirements that must be met in order for it to be admissible in court. For example, the text message must be deemed to be authentic, relevant, and properly obtained. Encountering issues regarding the authenticity of a text message is not uncommon. For instance, in order to authenticate a document in court a party usually needs to establish who authored the document. Typically, introducing alive witness who can testify to its purported author suffices. However, the issue with authentication in regards to a text message lies in how to achieve this goal virtually. Authentication issues can typically be solved by a forensic expert who can digitally verify the text message’s creation date as well as who authored the message.
Text messages must also be relevant. Generally speaking, a text message will be deemed relevant if it has any sort of bearing on the outcome of the case. However, courts also consider other factors such as the lack of prejudice that a piece of evidence might bring about. Courts will generally exclude a piece of evidence if its value is far outweighed by the chances of it bringing about prejudice.
Obtaining these messages is also an important factor. For instance, text messages stored on the cell phone of a spouse are typically owned by that spouse—even if that spouse deletes them. However, if a court order is issued compelling the parties to produce all evidence that is relevant to the case the parties are required to comply. If a party does not comply with the court’s order the judge could impose sanctions against that party. Sanctions are any punishment that a court may impose in order to achieve the goal of the court. In this case, the goal is to compel compliance with the discovery request—the results of which would involve turning over the telephone records.
Text Messaging and Your Divorce Case
Your text messages can make or break your divorce case. Consider how your ex’s text messages might be used to affect or even alter the outcome of proceedings related to your proceedings to divide assets, grant child custody or determine whether you will pay or be paid alimony.
Dividing Assets
Courts, mediators and arbitrators will look at the total value of all property owned by the couple when dividing the couple’s assets. If your ex’s text messages show that he or she has transferred or hidden funds, this can impact asset distribution. For example, if your ex told a friend in a text message that his "assets are hidden under several layers of secrecy in foreign bank accounts," this might support your case to have your ex’s assets appraised and allow for a division of assets that reflects the truth of your combined property values. In another scenario, such as when your ex claims she didn’t earn a six-figure salary at her job, text messages showing the existence of a payment of more than $100,000 in a single month might help her to be found in contempt of court.
Child Custody
In cases with child custody at issue, courts, mediators and arbitrators will consider the type of relationship the child has with each parent, their ability to function as a parent and the safety and supervision provided by each parent. For example, if one of the child’s parents sent a text to his friend admitting he regularly drinks and drives with the child while in the car, texts showing this fact might hurt his chances of receiving full custody. In other cases, texts might show who was supervising the child at a relevant time. For example, if one parent claims to have been caring for the child when the other parent was drunk, text messages from the other parent evidencing that she was, in fact, out with friends at the bar at that time might help the successful presentation of your case.
Alimony
Divorcees who have enjoyed a very high standard of living and a luxurious lifestyle during their marriage might receive permanent alimony. This is also the case in short-term marriages if, due to young age or lack of employment experience, the divorcing spouse will be unable to achieve the standard of living enjoyed by both spouses during the marriage. It can also happen in long-term marriages if one spouse has sacrificed his or her career or earning capacity in order to assist the other spouse in career or earning capacity. This scenario happens most frequently in marriages where one spouse dedicated his or her time to child-rearing or in marriages where one spouse’s career took precedence over the other spouse’s career. For instance, if one of the spouses admits via text to his or her affair, this could support a finding of (although not guarantee a finding of) fault, and therefore, cause a reduction or elimination of an award of alimony. Likewise, text messages showing one spouse’s numbers in a lottery, and those numbers not matching any of the numbers on any account statements provided, as well as the spontaneous resignation of the spouse’s job might indicate a desire to skip out on alimony.
Privacy Issues and the Law
Privacy Considerations and Legal Boundaries
When it comes to presenting evidence, text messages are no different than other forms of communication and can be subject to issues of privacy rights and legal boundaries. When it comes to harmful or even potentially incriminating text messages, it is not uncommon for someone to obtain an individual’s household phone records or social media history in order to gather proof – only to later find out that they have broken the law in doing so, garnering the consequences.
If the receiving party, for example, texts someone a picture, many divorce cases may require obtaining such evidence if a spouse is suspected of being unfaithful. The only way to do so could be to hack the other person’s phone or obtain records illegally. Even if the owner of the device consents to turning over the text, there could be issues with the privacy of the sender .
A person who stores his or her text messages on the cloud may have given consent to its use as evidence, but the text messages may indicate that the sender had no idea they were being saved in the first place, making the question of consent unclear.
When it comes to social media and other text-based communications in today’s high-tech world, individuals have to be careful about how evidence is obtained. Consenting to turn over information is one thing – such as agreeing for a text exchange to be used in a court of law. However, if it involves hacking into accounts, obtaining stored information knowingly or unknowingly from the cloud or elsewhere without permission, or getting information from individuals through other dubious means, there could be legal consequences for doing so.
Depending on the scope, that could include civil and – in more serious situations – criminal liability. For this reason, it is important to proceed cautiously and speak with a qualified legal professional familiar with technology if you believe it is necessary to use text messages in court proceedings.
Best Practices for Text-Using Litigants
When using text messages as evidence in your case, it is important to utilize the evidence to your advantage, which starts with preserving text message evidence. The best thing you can do to prepare to use text messages in court is to ensure they are accurate, up-to-date, and stored correctly. Here are some suggestions: First, take a screenshot of text messages that are important, especially if you think that you may need to show them at trial. A screenshot is treated the same as a physical copy of a document, so you may be able to enter your text messages into evidence without making any additional changes. However, this depends on whether the screenshot accurately depicts the contents of the text message on the persons’ phone—if you add or delete anything, it may not be accurate. Screenshots cannot be manipulated under any circumstance. A screenshot can be taken with any phone. Second, make sure to consult an IT expert for help preserving text messages before deleting them from your phone. Many people believe that deleting text messages means they are gone forever. It is possible for a forensic expert to be able to recover messages even after you delete. However, to successfully retrieve the messages, individuals who have these messages on their phone should not allow anyone to access their phone other than the appointed forensic expert.
Seeking Guidance from an Attorney
While text messages can be powerful tools in divorce proceedings, it is important to use them in a way that ensures they can be used for a legal purpose. There are many considerations involved in determining if a text message is appropriate evidence of this type. The circumstances of the divorce play a role, as does the legal strategy being used by the individual or their attorney. If you are in the midst of a divorce and considering the use of text messages, make sure you have the support of legal professionals who understand the complexities of these issues. The aforementioned Stephen Allen, Esq. advises that, "I frequently represent clients with difficulties, as to the location of essential documents, as their ex-spouse or partner has destroyed or hidden the same. The client often cannot produce evidence of their prior existence, as neither attorney or accountant were provided copies of their existence. They are sometimes, however, found on the other spouse’s phone. "Through court proceedings, a copy can sometimes be obtained from the cellular phone carrier and/or from a forensic computer expert . I inform my clients that in times of heightened argument, they should beware of sending or receiving communications on the cellular phone, as they may be copied or otherwise saved by the other party to use against them." Although text messages can, and often do, provide key evidence in divorce or child custody matters, they should be used with caution and careful consideration of how they fit into your overall strategy for the case. Consult with a legal professional about the evidence you have and what you plan to do with it. He or she may give you insight into how to use it best, or they might recommend leaving it out and focusing on other avenues for your case. Remember that at a minimum, when divorce court trials usually take place in full public view, they are not sealed like text messages are on your phone. They will not only expose any alleged bad behaviors on the part of you or your spouse; they could also potentially involve children being there at the courthouse, while other parties hear you and your spouse speak in detail about the things you have gone through in your marriage.