Can text messages be used in court as evidence? More documents are created electronically than in any other fashion. Electronic devices are everywhere. Office computers, personal computers, laptops, tablets, phones, personal electronic assistants, video doorbells, and even some cars, televisions, and refrigerators can generate, transmit, and store numerous amounts of data, including text messages. Many such documents will inevitably be presented as valuable evidence in court.
The Predominance of Text Messages & Electronically Stored Information
Text messages are the most common form of electronically stored information (hereafter sometimes ESI). Consumers and businesses prefer them as a quick, cost-effective, simple form of communication. Ninety-seven percent of Americans text at least weekly, and the daily volume of texts is a staggering 6.1 billion nationwide in 2020. Eighty percent of professionals use text messages for business purposes, and one-third of them report being unable to go ten minutes without texting.
While the world is awash in text messages, the analytical process is the same as traditional documents like printed letters, reports, and photographs. The fact that some communication is electronically created or stored does not change its legal status or the applicable questions that must be answered before admissibility can be determined.
Text Message As A “Writing” or “Document” for Evidentiary Purposes?
The definition of writing under the Federal Rules of Evidence (hereafter, sometimes FRE) is broad enough to include text messages and other computer-generated communication. Under FRE 1001(a), ‘A “writing” consists of letters, words, numbers, or their equivalent set down in any form.” Under subdivision (d) of the same Rule, “For electronically stored information, “original” means any printout — or other output readable by sight — if it accurately reflects the information. An “original” of a photograph includes the negative or a print from it.” These definitions include text messages.
Likewise, Cal. Evidence Code section 250 defines a document as: “Writing” means handwriting, typewriting, printing, photo stating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of how the record has been stored.”
Text messages are often admitted in California, mainly in criminal and family law contexts. However, relevance, authentication, and hearsay issues frequently prevent their admission. (See, for example, People v. McDaniel (2019) 38 Cal. App. 5th 986). The same is true in Federal court. (Jonathan D. Frieden & Leigh M. Murray, The Admissibility of Electronic Evidence Under the Federal Rules of Evidence, 17 Rich. J.L. & Tech 5 (2011))
Suspicion of Electronically Stored Information
Scholars have noted that courts and juries are wary of ESI. After all, anyone can post anything on the Internet or in a text message, Twitter feed, or social media posts. Fake news is a reality. Even more worrying, ESI is subject to constant change through automatic updates, planned webpage maintenance, and outright hacking. Another person can send a text message in my name from a random cell phone, and proof of my non-authorship will be difficult.
Are Text Messages Admissable?
Despite this distrust, electronic evidence is no different than old-fashioned letters, photographs, and recordings. Courts have always dealt with exaggeration, half-truths, lies, fraud, and forgeries. Text messages and other electronically stored information are new media for old problems.
The three parts show that text messages must be admitted as evidence in court.
Like other evidence, text messages must overcome three hurdles to be admissible. They must be I) relevant, II) authenticated, and III) within an exception to the hearsay rule.
I. Relevance
Relevance is not a demanding standard. Under FRE 401: “Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.”
“Any tendency” is a forgiving test. Relevant evidence is admissible unless a specific prohibition bars its consideration. (FRE 402)
California Evidence Code section 210 refers to relevant evidence as “having any tendency in reason to prove or disprove” a disputed fact. Only relevant evidence is admissible under California Evidence Code section 350. Section 351 provides that all relevant evidence is admissible except as provided by statute.
Text messages might be relevant in a criminal case to show threats, prior inconsistent statements or admissions were made, to establish harassment, and so on. In family law matters, messages can establish the existence of or intent to hide assets and continued failure to comply with visitation and support orders. In a contract case, they could provide written evidence for the terms of an oral agreement or clarify the parties’ intentions.
Except where a signature or other formality is required, text messages can serve almost the same purposes as hard copies of documents have in the past. Like those more traditional documents, they must still pass evidentiary muster. As McDaniel points out, text messages may not be read when sent, so the failure to respond may not indicate agreement. Likewise, a text message without more, such as a contemporary response, is not proof of if or when a notice was received.
II. Authenticate Text Messages
The party offering a text message as evidence must meet the same burdens as proponents of other evidence. The most basic of these is authentication. This is a two-part process. Upon hearing the evidence, the court makes a threshold determination whether a reasonable jury could conclude that the item offered is genuinely based on that evidence. If so, determining authenticity— whether the item proffered is what will occur to the jury. Federal Rule of Evidence 901 (b) lists several authentication methods applicable to text messages.
“b) Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
Comment to subdivision, of course, a witness could testify that he or she saw the text messages being dictated or written and sent or discussed the text in a way that indicated authorship without violating the hearsay rule.
…
(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.
(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
Comment concerning subdivisions (3) and (4): Although typically applied to handwriting or allegedly forged goods in traditional cases, these provisions of the FRE are among the most frequently used in the authentication of text messages.
Text messages produced as discovery responses are verified and require no separate authentication.
III. Hearsay Issues
Hearsay is an out-of-court statement intended to prove the truth of the matter asserted. If a text message is offered for its truth rather than as an element of the offense or for some other purpose, it must fall within an exception to the hearsay rule or is inadmissible. There are dozens of hearsay exceptions: confessions, admissions against interest, family history, public records, business records, statements made for medical treatment, statements of then-existing physical condition, and more.
While some exceptions may seem Unlikely to apply to email, unique situations may arise in an increasingly virtual world where the COVID-19 pandemic requires distancing. Therefore, an open mind is advisable.
IV. Practical Issues: Preserving Text Messages
Text messages may not be saved by the carrier providing the texting service. Or they may be saved for a very short time. Other corroborating information may be saved, such as the time the message was sent, the sending and receiving numbers, and location data.) A subpoena should be served when a party becomes aware that text messages are relevant. Future text messages should be printed and backed up to the cloud continuously.
Parties should be served with text-related discovery early and possibly repeatedly if it remains relevant. Remember, electronic records can be lost if devices fail. External preservation is critical, even if the purchase of software is needed. If nothing else, a screenshot or other photograph of a text can preserve it.
V. Deleted Messages
A critical message has been deleted. Now what? First, determine if anyone subject to subpoena or discovery retains a copy. Efforts to recover can be made. If this fails, the text of a deleted message may be proven by secondary evidence, including the testimony of one who read it (FRE 1004).
Contact ADR Times today to learn whether text messages can be used in court, the evidence discovery process, and more!
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