Using Text Messages In Court
Much of our communication in today’s world is done via text messaging or some other type of messaging app (e.g. Facebook Messenger). These easily recorded conversations can be helpful during litigation, but you want to avoid some common pitfalls if you plan to use them in court.
As an initial matter, you should know that text messages will not always be admissible in court. There are issues regarding relevance, hearsay, and other evidentiary rules that may keep the messages from being entered into evidence.
In instances where it is appropriate and you want to use a text message as evidence, you still need to make sure you have accounted for the who and when. The most common questions tend to relate to who sent the text and what date the text was sent. So if you have a screenshot of a text message and it does not have a date anywhere on it, that can be a problem. Similarly, if you have a screenshot that does not specify who sent the message, that can also be a problem.
There are online services that you can use to retrieve messages from your phone and create a document that clearly indicates which number sent each text and when each text was sent. We often encourage clients to utilize this service when the case is going to involve numerous text messages; the cost to the client for that service is typically completely offset by the saved attorney’s fees from the increased efficiency in reviewing the messages.
If you are using screenshots then here are some tips to follow:
- Account for the date the messages were sent. This may mean taking multiple screenshots of the thread going back to the beginning of the conversation on that date.
- Have appropriate names for individuals within the message thread. If you are introducing the text messages of an opposing party, you should not have a derogatory name for that individual (particularly if you are involved in a family law matter). I often recommend removing the name or changing it to the individual’s phone number.
- Have the phone number of the party sending the message apparent in the screenshot. Again, that may mean changing the contact’s name in your phone to that number.