Text Messages in Court – Admissible?

We often get asked about the admissibility of text messages in a court of law.    The short answer is yes, text messages can be admitted as evidence to a court of law, BUT you need to be careful.

Most of us have watched “Judge Judy” or “Judge Brown” or some episode of “People’s Court” and we see the plaintiffs or defendants showing their phone to the judge and it’s accepted as evidence without a second thought.    This always makes me cringe.   This is NOT how it should be done, especially if the text messages are going to be a key part of evidence in the case.

While there are a number of instances of text messages either being admissible or not in court due to the hearsay rule, we will not focus on that here.  Instead we will focus on what you can do (and why you should do it) to ensure the best chance of text messages being considered as evidence in the first place.  If your curiosity is getting the best of you some notable rulings concerning the hearsay aspect of text messages are included at the bottom of this page .

While it may be convenient to just take your phone to court to show a judge or jury the text messages on your device, this is not advised for a couple of reasons:

1. What if something disastrous happens to the phone containing the messages shortly before, or worse, the day you are scheduled to appear in court?  What if your battery dies?

2. Can you prove that no one has tampered with the message?  Manipulating the file system in a mobile device is not trivial, but it can be done.  Someone technically inclined could make a text message on a phone say whatever they wanted it to say, without having to actually have sent or received the message.

Other people have suggested that either printing text messages straight from a device or taking photocopies or screenshots of the phone would serve the same purpose as a proper forensics examination.  Most people know pictures can be easily manipulated with software like Photoshop.  This is simply not a good method to preserve potential evidence on a cell phone.  Ask yourself this: if you were on a jury, would you rather have a picture of a bullet casing laying on the ground or the results of a ballistics test performed by a highly trained forensics expert to confirm that a bullet casing matched a particular gun?

Another reason this is a bad practice, is that most people will only print or photocopy the portions of the data on their phone that makes their case.  The easiest defense in a case like this is that the other party is purposely omitting information that may prove against what the party is claiming.   This is almost guaranteed to make your phone the subject of a discovery order or search warrant by the other side of the case.

A proper forensics exam on a phone will cover these issues.  A forensics exam will first create an image (or ‘snapshot’) of the phone, preserving all of its contents at the time the image was taken.  This forensics image is taken directly from the phone’s interface with the computer chip(s) inside the phone.   This is effectively a backup of the phone and preserves the contents of the phone, so even if the phone gets run over by a bulldozer you will still have all of the data.

Furthermore, while taking the image, a forensics examiner will create what is called a “hash value” of portions of the data and/or the forensics image.  This hash value is the output of a complex mathematical formula that can be used to prove that data has not changed from one measurement to another (i.e. hash values can be calculated months or even years apart and the same output value shows that the data hasn’t changed).  The hash value is taken while the phone is being imaged, which in turn can be used to verify that data has not been manipulated or changed.  This allows reliable testimony that the information has not changed since the phone was examined.

Cell phone forensics investigators have the techniques, tools and training to properly satisfy all of the criteria needed for text messages to be admissible in a court of law.  You could take your chances and just take your phone with you to court,  but it’d be much safer, and more fruitful to your court case to properly handle the evidence.

As always, if you have an important court case, consult with an attorney about these issues before they come up.

<h2>Notable Rulings on Hearsay Issues with Text Messages</h2>

Funches v. State, 2012 WL 436635 (Nev. 2012)

Commonwealth v. Koch, PICS Case No. 11-4106 (Pa. Super. Sept. 16, 2011)

State v. Thompson, 2010 ND 10, P1 (N.D. 2010)