Legal How-To: Using Text Messages as Evidence - Law and Daily Life
Law & Daily Life - The FindLaw Life, Family and Workplace Law Blog

Legal How-To: Using Text Messages as Evidence

If you watch "Judge Judy," then you'll know that these days, a smoking gun often comes in the form of a smokin' text message.

After all, 91 percent of American adults own cell phones, and of those, 81 percent send or receive text messages, according to a 2013 study by the Pew Research Center's Internet & American Life Project.

But how do you use text messages as evidence in court -- small claims or otherwise? Here's a general overview:

1. Physically Save the Text Messages.

As a first step, save the messages (by using your phone's "screen capture" option, or other methods) and email the texts to yourself.

To preserve the authenticity of the texts, be sure to save the entire conversation (i.e., even the texts you sent). Retain copies of the text messages for yourself and for the court.

2. Have a Way to Authenticate the Text Messages.

A major evidentiary issue for the judge is determining whether the texts were genuinely written by the other party. The key to overcoming this barrier is by authenticating the source of the messages.

Text messages can be authenticated through a variety of ways, including:

  • The other party admitting they're his texts;
  • A witness who saw the messages created;
  • Characteristics of the message itself;
  • Circumstantial proof; and
  • "Reply authentication," in which a reply text is deemed authentic because it's clearly in response to the text message that was initially sent.

3. Figure Out How to Overcome Hearsay Issues.

Another challenge to getting text messages admitted as evidence is when they constitute hearsay statements. A Pennsylvania prosecutor learned this the hard way when a drug conviction was overturned over hearsay text messages (and the messages weren't authenticated either!).

A key question to ask: What exactly are you trying to prove with your text message evidence? If you want to use the out-of-court statements made in the texts as evidence, and you want the court to accept those statements as true, then the texts will likely be considered hearsay evidence.

In such a situation, the texts can get in as evidence only if they fit within a hearsay exception. And those rules can get very tricky.

Need More Help?

If you need more guidance about how to use text messages as evidence in your case, consider calling an experienced lawyer in your area. If your matter is in small claims court, note that while you generally can't bring a lawyer into small claims court, you can still consult with one beforehand.

Are you facing a legal issue you'd like to handle on your own? Suggest a topic for our Legal How-To series by sending us a tweet @FindLawConsumer with the hashtag #HowTo.

Related Resources: