Are Text Messages Admissible as Evidence in Family Law and Other Civil Proceedings?
Text messaging has become a way of life, replacing emails and phone conversations in many instances. The increased use of texting raises important questions regarding legal procedures. Given that emails, phone conversations, and live interactions are all potentially admissible in civil trials, under what conditions are text messages admissible in civil court proceedings, such as divorce and family law matters?
Potential Uses of Text Messages in Divorce Proceedings
In divorce proceedings, text messages could have a significant impact on custody and visitation determinations. Statements made in text messages might include language about illegal activities, physical threats, or other matters that could give a spouse ammunition to seek a restraining order or ask the court to amend custody, visitation, and support orders.
Potential Problems Admitting Text Messages as Evidence in Civil Court
The first challenge with allowing text messages to be admissible in court relates to their authenticity. How can the court verify that a text messages actually was sent by the party alleged to have sent it? Furthermore, how can the court be sure that text messages a party seeks to introduce in court are accurate copies or representations of the original messages?
Texas courts have consistently found that the existing rules of evidence are sufficient to authenticate electronic information, including text messages. The admissibility of such evidence is determined by the judge. The sole function of the jury with respect to electronic evidence is to decide how much weight to give it.
Under current practice in Texas, electronic evidence, including emails and text messages, are generally verified through witness testimony and circumstantial evidence. There are, however, additional hurdles to admitting text messages into evidence:
- How is the text message presented to the court? – Text messages are cellphone-based and not necessarily easy to extract and put into a form that can be reviewed by a jury. In response, courts allow the content of text messages to be presented to juries in a number of different ways:
- Some courts allow text messages to be read into the record, provided the cellphone is admitted as physical evidence.
- Some courts allow photographs of text messages into evidence.
- How can the court be sure that the alleged party sent the text message? – Simply admitting a text message into evidence does not ensure that it was actually sent by the alleged party. One court has held that the mere fact that a text message is on a person’s cellphone is not sufficient to prove that the owner of the cellphone sent it, as cellphones can be stolen or subject to unauthorized use. That court held, however, that the substance of the text message, taken in the context of the facts of the case, provided sufficient authentication.
Other rules of evidence can have an impact on the admissibility of text messages. Texts may be inadmissible hearsay, and in some cases, may be considered an invasion of privacy. Currently, then, text messages are potentially admissible in family law or divorce proceedings at the discretion of the judge, based on existing rules of evidence.
At the law office of Bailey & Galyen, we offer a free initial consultation to every client. For an appointment with an experienced Texas family law attorney, contact us by email or call our offices at 844-402-2992. We will take your call 24 hours a day, seven days a week.
