Text Messages as Admissible Evidence
When it comes to the use of digital communications as evidence in family court, there are a number of factors that are considered, including relevance, authenticity, materiality and prejudice. Text messages are no exception. In fact, text messages and other electronic communications have become common forms of evidence in family court.
In the past, text messages were considered less secure and potentially altered methods of communication that were susceptible to impersonation. This has not hampered the trend of using text messages as evidence in family court, however, as they have become a significant form of evidence in virtually all kinds of family law cases. Generally, courts will accept the use of text messages in family court unless their acceptance is substantially outweighed by the danger of unfair prejudice. Courts also prefer parties address minor problems in family law cases through private negotiations, and will consider that fact when reviewing text messages that were not addressed prior to the trial or hearing.
When rules of evidence do not expressly address the use of text messages as evidence in family court, the courts will consider whether the text messages (1) involve statements made to prove the truth of the matter asserted, or (2) involve statements that are not hearsay. As the use of text messaging has become prevalent, courts have recognized its "growing significance to society . " As such, family courts across Canada have acknowledged the increasing reliance on text messages as important or relevant evidence, and have approached the admissibility of text messages without any restrictions. In most circumstances, text messages are admissible unless the proponent fails to authenticate them or they are cumulative.
Just as a letter is not more reliable simply because it is typed, a text message is not necessarily more reliable because it comes from a phone, and courts have consistently found that text messages must be authenticated like other methods of communication. In order to authenticate a text message, the proponent must first demonstrate a connection between the text messages and the person who purportedly sent them. The authorities have found that text message evidence may be authenticated in different ways including, for example, by direct evidence or circumstantial evidence. Where circumstantial evidence is used, the circumstances that establish the basis for authentication are carefully examined by reference to the difference between content and context. The courts have held that circumstantial evidence that will suffice to authenticate a text message must be sufficient to prevent the likelihood that an unknown third party, rather than the alleged author, is the person who transmitted the communication.
How to Gather Texts for Evidence
Proper collection and preservation of text messages in advance of family court proceedings is essential. Your Family Court lawyer can certainly assist you in this process. However, it is worthwhile to know a few things which may help save significant money on attorney’s fees in this early stage of any case. For example, to the extent possible, make sure that you preserve text messages digitally.
Don’t take screen shots because these are easily manipulated. Avoid the temptation to print them out onto paper. Your lawyer should be able to text messages and emails, but if not, this should be completed at the earliest date possible or he/she may risk not being able to get the information at all.
Text message collection in particular has "plenty of room for human error," says Rebenfeld. For most text message apps, when you delete a conversation it is gone forever — unless your spouse backed up his or her phone and saved it. Third party programs exist that claim to archive deleted texts but they may or may not be accurate.
One caveat is that if you have the third party software on your phone, it has the potential to be hacked by a hacker or private investigator working for your spouse. While it is unlikely that a professional would erase the text message evidence, it is conceivable, particularly when the crime has been committed against the professional’s client.
On a separate note, if you believe that your spouse may be conducting outside communications specifically designed to hide the truth during court proceedings, it is important to take screenshots without using specific apps. Although this probably will not be admissible at trial (because it is not 100% accurate), it may serve as support for an application to the court to direct the defendant to provide the actual information to you. Clearly, the accuracy of the screenshots will not be guaranteed.
Verifying the Authenticity of Texts
Demonstrating the authenticity of a custodial parent’s text messages is an essential step in family court proceedings. Some courts accept parental text messages as evidence and others do not. In cases where the court will accept them, you may use the evidence to prove you are fit for visitation or that the custodial parent does not properly provide for the child. As such, proving the authenticity of your text messages is crucial to the outcome of your case.
The first step to certifying the authenticity of the text messages is to produce them in their original state. Your attorney will obtain a copy of the message. You may also print a hard copy of the text messages or email them to your lawyer. This process keeps the integrity of the message intact so it cannot be altered in any way by the time it reaches court.
Metadata from the text messages also provides necessary information to support the authenticity of the messages. For example, the metadata from the messages might supply the name of the person who sent the text or the date and time the text arrived. Metadata can also prove the date and time changes occurred. Without this information, the custody attorney cannot prove the accuracy of the texts in court.
The ruling judge might also require witness testimony to prove the authentication of text messages. In family court, having corroborating evidence improves your argument. Bring in critical witnesses, such as the person who received the text messages or the person who sent the text messages, to support your case.
Privacy Issues and Legal Challenges
In a digital age where text messages can serve as key evidence in family court, people still often assume that text messages are private and secure forms of communication. However, issues of privacy and consent come into play when fighting a family law battle. Privacy Laws: You probably don’t want to hear this now when your spouse is in the process of sending you those London Eye images, but the reality is that it is illegal to monitor someone’s text messages. So if you get a lawyer who says they can look to see if your spouse is sending text messages to his girlfriend, run away from them! Under California Penal Code Section 632, which deals with eavesdropping on confidential communications, it is illegal to read someone else’s text messages without their permission. You have to have the consent of the person whose text messages you are reading. And under Penal Code Section 368, if you take pictures of the text messages, you could even be charged with taking or sending intimate images. This crime was basically designed to catch guys (it always seems to be the guys) who secretly took nude photos of your daughters or friends, uploaded them to social media, and then used them as revenge later in life. The law says that there has to be an intent to commit sexual offense, which means, in a child custody case, if your spouse is texting Pamela Anderson and asking her to meet him at the hotel on Tuesday, and you save the text messages, you won’t be charged with a crime. If him texting Pamela Anderson makes you believe he is a bad dad , then you will be able to use those text messages to show that he is a bad dad. And let’s face it, in a family court, it’s really all about who is the Parent of the Year today. It has nothing to do with who was Parent of the Year last week. Or who she tells you she was last month. It also has nothing to do with who will be the Parent of the Year tomorrow – does anyone do that? So if he is the Parent of the Year today, that’s pretty much all that matters to the court. However, one privacy issue that comes up often in family court cases is that one person takes the phone of the other spouse and uses the ! sign. Also, the other hot thing to do is try and get the spouse’s Apple ID user name or user Mac ID and use that to download the text messages. This is, of course, a no-no. You routinely see this in family law cases. The spouse doesn’t know how to crack the password, so she (the wife, of course!) asks her tech-savvy 10-year-old to get her husband’s iPhone and do the password cracker thing, which she then claims gets her all the text messages. Nice trick, but illegal. Remember, without the consent of the spouse, you can’t do anything with their text messages. Nothing at all, without their consent, so it’s best to ask them for permission. Otherwise you risk facing Penal Code Section 632 fines, not to mention sanctions under Family Code Section 271. Coupled with fees under Penal Code Section 1219 for contempt, it could get expensive.
How Text Messages Affect Your Case
When facing child custody and divorce, it is natural to worry about the potential complications you may encounter in family court. A divorce can create significant conflict, and given the many dangers of communing with your spouse via text message, such as inadvertently revealing evidence that is used against you in divorce court, many are surprised to learn that these same text messages can and often do serve to strengthen a case.
Confidentiality Problems
It is important to remember that although text messages are sent via what is commonly believed to be a private network, when you send a text message you are subject to the collection of admissible evidence. This means that, while you are able to freely discuss certain issues with your spouse, if that spouse is prone to starting fights and keeping evidence for use against you in a court of law, those text messages can easily be used as evidence of abuse. In some cases, people believe that because their phones number changes while overseas, there is no way for a text message to be used as evidence in a different country. This is simply untrue and can quickly be refuted by obtaining the proper legal request, making it essential to immediately secure the services of an attorney when faced with charges of abuse, particularly with children.
Ties That Bind
In addition to providing clear evidence that may be difficult to refute, text messages that are carefully saved can serve to provide clear evidence of harassment or bullying. In the case of a college student with a controlling or otherwise troublesome partner, even if you are overseas, a judge will appreciate having clear evidence of your predicament. Text messages sent to friends and family can be particularly telling. They are raw, unfiltered, and often contain slang or foul language intended to bond you with the person you send them to. If a controlling partner is sending undeniably troublesome messages, these can be used against them, showing the court that you were indeed in a challenging situation. Sometimes the text messages you receive also hold the potential to clear your name. If your spouse makes it clear that the sum of money you were spending before, during, or after the relationship came from drug sales, for example, this evidence can be taken directly to law enforcement where charges can be filed. You may find that a messy situation with your partner is thereby diffused.
Legal Advice and Resources
When it comes to sensitive and complex matters such as custody disputes, property settlement, and spousal maintenance, it is essential to approach electronic evidence like text messages with caution. That’s why seeking legal advice before using these kinds of communications in family court proceedings is so important. Speak with an experienced attorney to ensure you collect, preserve and present text message records in a way that makes them admissible in court, when and if the need arises. In addition, an attorney will be able to guide you through the sometimes tricky process of getting text message records before the court . It is essential to speak with an attorney if you are planning to use text messages in your family court proceedings. The information you glean in a consultation with a qualified family lawyer will be invaluable for you during the course of your legal matter. In addition to speaking with a lawyer, it is also important to consider consulting with your spouse’s attorney before using text messages as evidence in court. There may be issues you are unaware of that could make it difficult or impossible to get the information you are seeking. When you deal with these issues ahead of time, and with the guidance and support of a lawyer, the matter will be easier to resolve when the time comes.