Yes, If They Have Verified Proof You Not Only Typed the Message and But You Sent it,
Then Your Text Messages Can Be Used In Court
Sometimes the so-called victim can perpetrate a fraud, so the prosecutor is required to verify they came from your handset and that you also typed them.
There are also instances where a work or community phone or borrowed phone can be manipulatd to make you look guilty
That is why Due Process regarding secondary evindence requires that the prosecutor verify. Especially in circumstances of Bias or Hostile Witnesses
Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts
Can I Use Text Messages in My California Divorce?
Two-Steps And Voila: How To Authenticate Text Messages
How Your Texts Can Be Used As Evidence?
California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests
case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees
Public Records Practices After the San Jose Decision
The Decision Briefing Merits After the San Jose Decision
Will My Text Messages and Social Media Posts Be Admissible Evidence
Text messages and social media posts present a unique problem for the law. When the rules of evidence were first written, text messaging and social media had not yet been invented, let alone swept the globe as a major form of communication and interaction. In today’s world, text messages and social media posts can have great evidentiary value, but there are no rules specifically aimed at their admissibility into evidence in a court of law.
Courts must interpret old rules in relation to new forms of communication
Courts, then, are left to interpret and apply the old rules to new forms of communication. Most courts have found a way to use the rules to allow text messages and social media posts to be introduced into court. The first hurdle that must be cleared to admit the evidence is to “authenticate” it. This means the party trying to admit the message into evidence must prove it is what they say it is (i.e. a text message sent by the person they say sent it). If the prosecutor is trying to prove you committed a crime by showing a text you sent, the prosecutor must show that you actually sent it. They can try to do this by showing it is from a number or account associated with your name.
Some courts, however, have ruled this is not enough to prove the message was sent from you, as different people may have access to your phone or Facebook page, and of course, it is possible to create fake Facebook pages, or to be hacked. As a result, some courts require extra proof that the message was from you. For example, they may look to information included in the text that only you could have known.
Once the prosecutor sufficiently authenticates the messages, they will have to prove the text message is relevant, not overly prejudicial, and does not violate any other rules of evidence. Probably the biggest burden to getting a text message introduced into evidence (other than authentication), will be the hearsay objection. Many text will be classified as hearsay, as they are all statements that were made outside of court. However, many texts will be admitted anyway, because the party introducing them will argue that they are not being offered for the truth of the matter asserted in the text, but rather that the text message is being offered to prove something else (i.e. that the defendant and the victim were communicating just prior to the assault). Further, even if the text message is hearsay, courts have found that multiple different exceptions will apply, and admit the text anyway.
Texts or social media posts will almost certainly be allowed as evidence in court.
Finally, and most importantly for criminal defendants, any texts or social media posts created by the defendant will almost certainly come into evidence once authenticated, if the prosecutor wants to admit them, because their admission into evidence is being sought not by the defendant, but by the State. See Wyoming Rule of Evidence 801(d)(2). Under the rule, if the prosecutor wants to introduce the text message of the defendant, the prosecutor can do that. Oddly enough, if the Defendant wants to introduce a text message he sent, it would be considered hearsay. Defendant’s only other choice to show he sent the text would be to take the stand.
The bottom line is that texts you send and posts you create on social media will most likely be used against you at a trial in your, if the prosecutor obtains them, can prove it was you who sent them, and thinks it will help prove the government’s case.
With the world sending 18.7 billion texts every day, it’s no surprise that SMS messages play such a key role in many modern cases.
Many assume their text messages are private and can reveal anything without repercussion, but this isn’t always the case. Police authorities can request warrants to search messages on a phone and legal professionals can present relevant texts as legal evidence in court.
However, text messages aren’t always useable in the courtroom. This blog post will look into when messages can be used as evidence, alongside famous examples of texts swaying a courtroom decision.
The ever-growing landscape of digital evidence
Text messages have been around for a while, with the World’s First Text Message sent on 3rd December 1992. At first, texts had a 160-character limit, but they can now include emojis, videos, pictures, GIFs and more.
Due to the popularity of SMS messaging, many cases have been decided on texts provided in the courtroom. Once a text message has been sent, it can swing a case. Text messages can often show motives to commit a crime or a person’s state of mind during the time of an alleged offence.
However, although text messages can be used in court as legal evidence, they aren’t automatically admissible.
And it isn’t just text messages lawyers have to deal with. Social media posts and other forms of digital communication can be used as evidence in court to decide the fate of a trial.
When can text messages be used in court?
Text messages — among other forms of electronically stored information (ESI) — must be legally obtained and properly preserved as evidence, or a court won’t pass them as authentic.
Texts must be presented in a format that shows more than just the sender or receiver’s name, with information proving their relevance. For example, the phone number that has sent the messages. A court order can be obtained if a person doesn’t voluntarily provide their phone.
There are also instances when text messages may have been deleted to cover up evidence. In these circumstances, texts can still be obtained from the receiver’s phone or from the phone’s service provider for a limited time.
Many famous cases involving celebrities have included text messages used as legal evidence in a court of law.
Examples of text messages being used in court
Text messages have been used as legal evidence in many prominent cases, just as they are in ordinary cases around the world on a daily basis.
Depp v Heard
In the trial between Johnny Depp and Amber Heard, Heard’s lawyers presented a series of graphic texts as they cross-examined Depp. They showed the court several graphic text messages between Depp and British actor Paul Bettany, in which they spoke of ‘burning’ and ‘drowning’ Heard.
In a statement, Depp said the texts were about a Monty Python scene, which he claimed to have testified to be one of his favourite films.
After the texts were shown, Sky News reported that there was a ‘definite shift in mood’ compared to the previous day.
‘Deflategate’ in the NFL
Texts have also been used in professional sports amid allegations of cheating in the NFL. A series of texts were revealed between staff of the NFL’s New England Patriots, which suggested the team may be cheating to win games.
An article from Sports Illustrated said, “New England Patriots personnel likely manipulated the air pressure of the footballs in their game against the Indianapolis Colts” to win the game.
Information about this scandal came to fruition from a series of text messages in which Jim McNally, the Patriots locker room attendant, named himself as ‘the deflator.’
The texts were used as crucial forms of evidence in the investigation against the Patriots. Quarterback Tom Brady claimed he had destroyed the phone that was allegedly part of the scandal and, as a result, was suspended for four games by the NFL.
The Michelle Carter case
The case against Michelle Carter in the United States drew national attention after she sent text messages to her boyfriend, convincing him to commit suicide.
Her boyfriend, Conrad Roy III, tragically took his own life in 2014.
Carter repeatedly sent texts to Roy, which were later used as evidence in the case. She was sentenced to 15 months in prison and five years of probation in 2017 after being convicted of manslaughter.
Handling digital evidence
The modern litigation professional must understand and use digital evidence — sometimes on a large scale.
Plus, digital evidence can go further than just what’s on the surface. Legitimacy and credibility of evidence can be proved by metadata, which describes the data behind the data of files and documents. Metadata attaches itself to all electronic files, leaving information about the who, what, when and where of documents, which can be cross-referenced with digital evidence during review.
Therefore, knowing how to obtain and preserve ESI to use as evidence is crucial.
Our comprehensive guide — The Evolution of Legal Data — explores new data types, how eDiscovery software can accelerate your litigation processes and how to handle large volumes of data.
To start learning about the importance of data in modern litigation, access your free copy of our guide below. source
How Your Texts Can Be Used As Evidence?
Many people assume text messages are private, but that’s not necessarily the case—as recent momentous events have shown. Text messages have played a pivotal role in the Jan. 6 hearings, and could be a foundation for legal action against those under scrutiny. Last week, a watchdog disclosed that the U.S. Secret Service deleted important text messages related to the attack, showing just how significant text message evidence can be.
Texts have also famously figured in high-profile court proceedings like the Michelle Carter “texting suicide” trial, the Anthony Weiner sexting trial, and, most recently, the Amber Heard-Johnny Depp defamation trial.
Like social media posts and other forms of digital communication, text messages can be used as evidence in court and can be instrumental in the outcome of both criminal and civil cases.
“People say things in texts that they then regret,” says Larry Buckfire, president of Michigan law firm Buckfire Law. “It’s so easy to say things you shouldn’t say or say things impulsively that you can’t take back once they’re documented.”
Here’s what to know about how text messages can be used as evidence.
How can text messages be used as evidence?
Text messages can be used to prove wrongdoing or support a defense position in a wide variety of court cases, ranging from family law matters like divorce and child custody to personal injury lawsuits to criminal trials.
Once a text message is admitted into court, it’s fair game—and can potentially make or break a case. “In a court proceeding, text messages are essentially a recorded conversation or, at least, a written expression of your intent to say something or do something,” Buckfire says. “They’re documentation of your thoughts, ideas, and expressions.”
In criminal cases, Buckfire says text messages are often used to show a person’s motive, intent to commit an alleged crime, or state of mind ahead of time. “You generally have to show that a person intended to commit a crime. So if they argue it was unintentional or inadvertent, text messages may show they intended to do something,” he says. “If they’re texting threatening messages to somebody or explaining a plan to commit a crime or to cover something up, that’s preserved.”
In the wake of the Supreme Court ruling in June to overturn Roe v. Wade, concerns are on the rise about the potential use of text messages, location data, and other digital information to punish people who discuss or search for information about access to abortion services. In the past, text messages have been used as evidence on a number of occasions against women facing criminal charges related to the end of their pregnancies.
As demonstrated by the Jan. 6 hearings, text messages can also be used as evidence in congressional hearings, which can ultimately lead to litigation. The House Jan. 6 committee has obtained thousands of text messages relating to top White House officials’ actions in the weeks leading up to the 2021 attack on the Capitol. During Tuesday’s hearing, the committee revealed text messages between former Trump campaign manager Brad Parscale and former Trump spokeswoman Katrina Pierson in which Parscale stated that Trump’s Jan. 6 rally speech was “asking for Civil War.”
Text messages have also been used to indict some of the individuals who participated or attempted to participate in the insurrection. One man, who arrived in Washington that day with 2,500 rounds of ammunition, sent text messages threatening to kill Washington Mayor Muriel Bowser as well as House Speaker Nancy Pelosi and said in a text that he was, “Ready to remove several craniums from shoulders.” Another texted a friend bragging he was “one of 700 inside” the Capitol.
As Darrell M. West, vice president and director of governance studies at the Brookings Institution, wrote in the weeks following the attack, “Taken together, the information gathered before, during, and after the riot demonstrates how technology enables both insurrection and legal accountability.”
When can text messages be used in court?
Before text messages can be introduced into a case, they have to be legally obtained as evidence. Buckfire says that if a person doesn’t voluntarily provide their cell phone, an attorney can obtain a court order or subpoena to gain access to relevant messages. Even if the owner of a phone has deleted certain messages from their own device,those texts can still be accessed from the phone of the person who received the messages. Most of the major cellular service providers also keep a record of the content of text messages sent and received by their account holders for a short period of time.
If a person has yet to be charged with a crime, Buckfire says law enforcement can seek a warrant from a judge or magistrate to search a phone. “You have to show good cause as to why the police need the phone and why it’s necessary for the investigation,” he says. “Once there’s a warrant, the police can go confiscate the phone, have it examined, and download [its data].”
It’s more difficult for law enforcement to get a hold of encrypted messages sent via secure messaging services like iMessage and WhatsApp. But if you use a cloud-based backup for these messagings apps, the content can still be accessed using special “cloud extraction” technologies, according to Privacy International.
Text messages must also be authenticated to be properly admitted into evidence. That means that an attorney must prove that a text was actually written and sent by who they say it was. According to the American Bar Association, text messages can be authenticated by witness testimony or by circumstantial evidence like “the author’s screen name or monikers, customary use of emoji or emoticons, the author’s known phone number, the reference to facts that are specific to the author, or reference to facts that only the author and a small number of other individuals may know.”
There’s a lot of scrutiny on admissible evidence in court, Buckfire says. “You can’t just bring in a phone and say, ‘Here’s this phone and this message,’” he says. “You have to show that a text is reliable, that it has useful value in a case, and that it’s not unfairly prejudiced.”
One of the most valuable lessons Buckfire says he’s learned from practicing law is to be careful about how you communicate things. “What you put in writing will come back to haunt you,” he says. source
World’s First Text Message
