“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 to say things impulsively that you can`t pick up once they`re documented.” In the field of family law, we meet daily with clients who have text messages that are crucial for matters related to their divorce or custody case. These texts may contain illegal material such as sexual text messages or “sexting” that show evidence of an affair. Others may provide evidence that their spouse persecuted or spied on them, and others may even plead guilty to physical abuse. As the New York Times wrote so well, “Texting a lover is the digital lipstick on the collar.” Famous politicians, public figures and athletes shared their private messages with the public and the press. (Do you remember what happened to Tiger Woods?) As a result, careers, families and marriages have suffered. A text may have been private, but it can be used as a form of written communication in a legal case that shows the whole world a case and fraud. If you only use screenshots, it can be difficult for your lawyer to properly organize the screenshots in chronological order, and your use of the screenshots can help the other party pretend that the screenshots lack important parts. There is a rule of proof that if an important context is missing, news can be excluded because it does not tell the whole story exactly.
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 in advance. “You usually have to prove that a person intended to commit a crime. So if they argue that it was unintentional or accidental, the text messages can show that they intended to do something,” he says. If they send threatening messages to someone or declare a plan to commit a crime or conceal something, this is preserved. Lawyers and clients often need to accurately document and print text messages for courts, mediations or court proceedings. Every year there are millions of other legal cases where text messages are used as evidence in a trial and also by lawyers for discovery. Before text messages can be brought into a case, they must be legally obtained as evidence. Buckfire says that if a person does not voluntarily provide their cell phone, a lawyer can get a court order or subpoena to gain access to the relevant messages.
Even if the owner of a phone has deleted some messages from their own device, these texts can still be recovered from the phone of the person who received the messages. Most major wireless service providers also keep records of the content of text messages sent and received by their account holders for a short period of time. Note: The best evidence rule does not prohibit the use of “copies” of text messages (Comm. v. Salyer). A text can also reveal brief messages about a couple`s children, visits, and custody issues. Taken out of context, a text may give the impression that a parent has an anger problem or does not care about the child or the children. Given the nature of the manipulation that can result from the interpretation of text messages, it depends mainly on the nature of that text and how it was obtained, whether or not that text message can be used in court. Your lawyer will tell you which ones are allowed or not. Often, we lawyers receive screenshots of our clients` messages.
Our clients want to provide us with evidence to help their cases. These screenshots are usually displayed as a JPEG file. Managing these files is a problem. To support your legal team and the judge leading your case, a more consistent and easy-to-read document, such as the PDF format, is welcome and appreciated. Text messages can be used to prove wrongdoing or support a defensive stance in a variety of legal proceedings, from family law issues such as divorce and custody to personal injury lawsuits and criminal litigation. Then there are apps that allow you to download messages from a phone or iPad and download the communication to a computer, Mac, or PC. Useful apps include iMazing, Decipher Tools, and SMS Expert. Many of these apps record the time and date, making it easy to use the document as relevant evidence in court.
Almost everyone in our modern world uses a phone or electronic device to communicate, which means we also leave a digital footprint. SMS has become a very traditional method of communication in the workplace and in our family communication. This comes with many legal issues. Can text messages be used in court? How serious are text messages as evidence in a case? Are yours being used against you? Learn how to use text messages as proof. It is therefore for the courts to interpret the old rules and apply them to the new forms of communication. Most courts have found a way to use the rules to take text messages and social media posts to court. The first hurdle that must be overcome to admit evidence is to “authenticate” it. This means that the party trying to admit the message as evidence must prove that this is what they say it is (i.e. a text message sent by the person they say they sent). If the prosecutor tries to prove that you committed a crime by showing a text you sent, he must prove that you actually sent it. You can try to do this by showing that it comes from a number or account associated with your name.
Ultimately, the judge calls to see if the text message is reliable enough to be admitted. You don`t necessarily need to use the person who sent the text message as the person who authenticates the text message. The person who receives it, or even another person who sees it, may be enough. A few years ago, the courts were skeptical about allowing text messages as evidence. However, the practice is now common. For text messages that are not from hearsay, text messages may be allowed in court as long as you meet the basic, authentication, and relevance requirements. It is more difficult for law enforcement agencies to receive encrypted messages sent through secure messaging services such as iMessage and WhatsApp. However, if you use a cloud-based backup for these messaging apps, the content is still accessible using special “cloud mining technologies,” according to Privacy International. However, some courts have ruled that this is not enough to prove that the message was sent by 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 be hacked. Therefore, some courts require additional proof that the message is from you.
For example, they may search for information contained in the text that only you could have known.