Many people assume text messages are private, but that’s not necessarily the case—as recent momentous events have shown. It is possible that text messages could serve as a legal basis to bring criminal action against anyone under investigation. Watchdogs revealed that U.S. Secret Service removed important texts related to the attack last week. It shows just how crucial text message evidence can sometimes 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.
As with social media posts, and other forms digital communication, texts messages may also be admissible as evidence at court. They can help determine the outcome of civil or criminal 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.
Is it possible to use text messages as evidence?
It is possible to use text messaging to show wrongdoing and support a defense in court. This includes family law cases like divorce or child custody, as well as personal injury lawsuits.
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.”
Concerns are growing about potential uses of location data and text messaging to penalize people searching for or discussing access to abortion. This is in light of June’s Supreme Court decision to repeal Roe v. Wade. Text messages were used in the past to support criminal cases against pregnant women who had ended their pregnancies.
Text messages may also be admissible in congressional hearings. 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.”
Some insurgents were indicted using text messaging. 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.”
Is it legal to send text messages during court proceedings?
Legally obtaining text messages as evidence is required before they can be used in a case. 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. The text messages can be accessed even if deleted by the phone owner. For a limited time, most major cellular providers will keep records of any text messages received or sent by account holders.
Buckfire states that law enforcement may seek a warrant to search the phone of a magistrate or judge if a person is not yet charged. “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.
For text messages to be admitted as evidence properly, they must be authenticated. To be properly admitted into evidence, an attorney must show that the text was written by and was sent by the person who wrote it. 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.
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