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Are Text Messages Admissible in Court?



If you've been involved in a car accident that has become litigated you may be wondering, “Are text messages admissible in court?”

Perhaps the other driver texted you an apology and offered to pay but now they are denying liability. Can this information be used as evidence to win your case?

In the following, we'll answer this question and explore the various factors that affect text message admissibility. Specifically we'll cover…

Are Text Messages Usable In Court?
How to Preserve Your Text Messages
How to Prove The Text Messages Are Real
How to Overcome Hearsay

Let's get started…

Are Text Messages Usable In Court?

The short answer to this entire line of questioning is yes, text messages can be used as evidence in a court of law. However, there are a number of hurdles that must be passed to get a text message admitted as evidence. A careful approach is required, so don't make any assumptions.

In legal jargon, text messages are referred to as electronically stored information (ESI) and they are required to pass a number of tests before being accepting. A few of these are:

  1. Is the information relevant to the case? Relevance defined as “evidence that makes a fact more or less likely to be true than it would be without the evidence (looking for probative value)” [1].

  2. Can it be shown that the other party owned the device or wrote the text messages in question?

  3. Has the evidence been tampered with?

  4. Is the information authentic? Can it be proven not to be hearsay?

  5. Are the text messages the best offer of evidence?

As you can see getting text messages or other forms of ESI into evidence is less straightforward than you might imagine. A careful foundation must be laid that demonstrates the above qualifications are met.

How to Preserve Your Text Messages

The first (and most important) step you can take towards getting text messages into court is properly preserving them.

  • Take a screenshot of the messages or conversation in question and save these images on another device or in the cloud. Everyone knows that images can be manipulated but this is a start.

  • Consider using a different phone until the case is resolved. May be considered overkill by some but an opposing attorney might try to claim the messages were tampered with.

  • If your phone has died or the information has been deleted you can contact your phone service provider and ask if it's possible to retrieve the information. This may not always work, but it's certainly a possibility.

How to Prove The Text Messages Are Real

Another barrier you may face in authenticating that these messages is proving they were genuinely written, sent, or received by the other party (plus showing the context matches what you are claiming).

There are different ways a set of ESI can be authenticated, here are some of the most common:

  • The other party admitting they sent them.
  • A style of speech or writing that can identify the author.
  • “Reply authentication”, where a message is accepted because it's clearly in response to a query.
  • A witness stating they saw them sent or received or where aware of them.

  • Circumstantial evidence or proof.

Authenticating text messages is something your attorney will be well versed in but it does not hurt to be educated yourself.

How to Overcome Hearsay

Anyone who has watched many court TV shows will know that “hearsay” is a common reason that things get thrown out of court. According to the Legal Dictionary [2], hearsay is:

“A statement made out of court that is offered in court as evidence to prove the truth of the matter asserted.”

What exactly does this mean for our purposes? Let's use an example.

Let's say you receive a text message from someone who knows the other party saying that “they tend to drink a lot and that they'd probably had a few, which contributed to the accident.” A court is unlikely to allow this text message to be used as it is an out of court statement offered to prove the truth of the matter asserted.

There can, of course, be exceptions but generally, this rule holds true. Knowing this definition and example should give you some idea of what's going to fly and what isn't.

There are some other tests that can be administered to determine if a text can be used. Assessing relevance and if the probative value of the text outweighs any unfair prejudice, for example -- but authenticating and overcoming hearsay are your primary battles.

Summary

Text messages are generally admissible in court but the path to getting them accepted is not always a straight one. Consulting with an experienced attorney is something you'll want to do and also, be sure to keep the basics in mind:

  • Text messages are generally accepted in court but they must be relevant and be supported by a foundation that passes a number of tests.

  • Preserving evidence is a challenge. Follow the advice of your attorney, backup conversations, and contact your carrier if any information was lost.

  • Authenticating messages and showing that they are not hearsay are two of the primary obstacles to be overcome getting ESI into court. Both of these can be accomplished with the right approach.


Sources:

1 - American Legal University Washington
2 - Legal dictionary


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