Sexting, Texting and Getting It In As Evidence

This article was written by Law Office of Natalie Gregg Associate Attorney, Lauren Gilbert

Text Messages as Court Evidence

Text messages are a great way to create a written record and avoid the he said, she said that often arises in family law cases. Have an agreement to vary from the possession schedule? Screenshot. Want to notify someone about something important? Screenshot. Need to document an inflammatory statement? Screenshot.

Keep in mind - just because you have text messages does not mean that they are automatically admissible as evidence in court. Text message conversations must contain relevant, admissible evidence and you must take steps to properly preserve the authenticity of the text messages or else you may not be able to use them as evidence.

Overcoming Objections: Evidentiary Hurdles

Like most pieces of evidence, text messages are not automatically admissible in court. You must ensure that they satisfy the requirements of the rules of evidence for your jurisdiction. Three of the main reasons the court might exclude text messages are relevance, hearsay, and lack of authenticity. You should be prepared to prove that they are relevant, are not hearsay (or meet an exception to hearsay) and are authentic.

Relevance. For a text message to be relevant, it must be “of consequence to the determination” of the case. For example, normally no one will care whether the child ate macaroni and cheese at lunch. However, that message can be used to show who had possession of the child that day or if a parent is not following a child’s dietary restrictions. Whether a text message is relevant depends on the facts of the case.

Hearsay. Hearsay is an out of court statement made by an individual who is not a party to the case. Generally, hearsay is not allowed into evidence. Whether a text message is hearsay is a little more complex. A text message between you and the opposing party might not be considered hearsay by the court and can be used as evidence. Text messages between you and someone who is not a party to the case will likely not be admissible.

Authenticity. The court will want to know whether the text messages you are trying to admit are authentic. Are the messages between you and the person you are claiming? Have you deleted or altered any of the text messages? Was the text message sent on the date that you are claiming? At the minimum, the following details should be visible in your text message documentation:

1.      The date and time that the messages were sent or received.

2.      The contact information for the other person.

How to Document and Print Text Messages

The court reporter keeps exhibits used in hearings and trials as part of the court record. Unless you want to lose your phone forever or allow the court to review other places in your phone, you need to bring your text messages in a format that the court reporter can keep. Typically, this means you need to have your text messages printed out. You can do so through screenshots of the text messages or through special programs or software.

Screenshots. One way to print your text messages is through screenshots. Below are instructions for screenshotting on an iPhone or Android device. Each device will have its own way of displaying the date, time-stamp, and contact information for the text message. If you are having trouble with screenshots, you can research the instructions for your device.

As you are creating screenshots, you should scroll through your conversation and capture each part of the conversation; ensuring that the date, time, and contact information are visible. Once a screenshot is captured, it should be automatically saved in the Photos folder of your device. From there, you should be able to send, save, or share the screenshot as you would with any other photograph or document. Be sure to organize your text messages in chronological order.

If you have a small number of text messages, screenshotting is a quick, easy, and free way to obtain a transcript of your text message conversation. However, if you have a lot of text messages that you would like to use as evidence, this can be time-consuming.

Programs. There are apps and programs available that will save text messages from your mobile device and transfer them to a computer. The programs will require a little more effort than a quick screenshot, but depending on the length and number of conversations, it may be worth it. Some apps and programs are free, some may have free trials, and others may have fees. The apps can be downloaded from the App Store or Google Play Store. Apps for iPhone include Decipher TextMessage, iMobie, and iPhone Messages Transfer. Apps for Android include SMS Backup + and Android Messages Backup. You should review any program before purchasing and downloading to make sure it is compatible with your device.

WWJD-- What Would Judge Do?

Just as you may be wanting to use text messages against the opposing party in your case, he or she may want to use your text messages against you. Firing off a quick, retaliatory text message may seem cathartic in the moment. Keep in mind, however, that anything you say can and will be used against you in a court of law. Before hitting send, think about what the judge in your case might think if he or she reads your text messages.