(978) 691-5453 | (603) 437-2643

Texts as Evidence: Electronically Stored Information in Court

Are Texts Admissible in Court?
Texts as Evidence

Are text messages admissible in court?  After an accident the other driver admitted she wasn’t paying attention.  In a text later the driver said she was sorry, that she’d been on the cell phone, and offered to pay outside of insurance.  Now that her insurance company is involved she denies everything.  Is the text admissible in court?

If you watch those TV court shows you may have seen them admit texts without a thought.  Remember they have to get everything in between the commercials.

In an actual court of law electronically stored information, or “ESI”, faces several tests under the rules of evidence.

ESI includes texts, emails, chat room conversations, websites and other digital postings.  In court, admitting ESI requires passing these steps:

  1. Is the electronic evidence relevant?
  2. Can it pass the test of authenticity?
  3. Is it hearsay?
  4. Is the version of ESI offered the best evidence?
  5. Is any probative value of the ESI outweighed by unfair prejudice?

The text must pass each step.  Failing any one means it’s excluded.  Proving relevance poses a relatively simple challenge.  But meeting the authenticity requirement raises larger questions.

Establishing the identity of the sender of a text is critical to satisfying the authentication requirement for admissibility.  Showing the text came from a person’s cell phone isn’t enough.  Cell phones are not always used only by the owner.

Courts generally require additional evidence confirming the texter’s identity.  Circumstantial evidence corroborating the sender’s identity might include the context or content of the messages themselves.

Hearsay Rule and Electronically Stored Information

Text messages and other ESI are hearsay by nature.  The hearsay rule blocks admission of out of court statements offered to prove the truth of the matter at issue.  But court rules, which vary from jurisdiction to jurisdiction, are full of exceptions and definitions of “non hearsay”.

Here, the text by the other driver that she wasn’t paying attention at the time of the car accident should qualify as an admission, a prior statement by the witness or a statement by a party opponent.

Texts and ‘Best Evidence’ Rule

Two more layers remain in the evidentiary hurdle.  ESI presents its own challenges in passing the ‘best evidence rule’ or the ‘original writing rule’.  Essentially the rules require introduction of an original, a duplicate original or secondary evidence proving the version offered to the court is reliable.

The final test requires that the probative value of the evidence not be outweighed by considerations including unfair prejudice, confusion of the issues or needless presentation of cumulative evidence.

ESI and Texts as Evidence: Why so Hard?

Sometimes the challenge isn’t as overwhelming as it seems.  In a federal case in which I was involved the court addressed all five steps of the process in ten minutes and admitted a series of texts.  But a federal magistrate in Maryland wrote a 101 page decision thoroughly detailing the above process, rejecting some emails.

These are the evidence issues confronting texts and any electronically stored information.  But, people who fail to object to evidence waive their right to object later, including upon appeal.  Evidence of all kinds sometimes sneaks in despite the rules.  So, go through the analysis long before running up the courthouse steps.

 

15 thoughts on “Texts as Evidence: Electronically Stored Information in Court”

  1. My prior tenant moved out leaving a mess. She admitted via txt to some of it. IS this admissible in court ?

  2. Pingback: Fran S.
    1. Well, first of all a judge wrote the primary decision cited here after a great deal of research. But the two basic purposes of the rules of evidence are to make sure evidence is reliable and truthful. So, courts can’t just give a nod to evidence that needs to be authenticated and explained through laying a proper foundation. Whether it is a personal injury case where the facts of an accident must be proven or any other case, those basic purposes underly all of the rules.
      #personal injury lawyer

  3. After a car accident the other person texted me apologizing, pretty much admitting fault and giving me the insurance information. After talking to their insurance company now they are backing away from that. I took a look at your blog titled “Are Text Messages Admissible Evidence in Court?” It seems a bit complicated and I also am not certain whether to download the texts somehow or to copy the texts from my phone in a photocopier. What is better?

    1. If you can download it the image will likely be more clear and as long as you can confirm that it is from the other driver. The rules of evidence also require that you authenticate and also lay a foundation, so best bet is to retain a personal injury attorney like myself in your jurisdiction to make sure all of the steps are followed. By the way I would also make sure you save the original text in your phone in case there is a question in the future. I wish you the best.
      #text messages in personal injury

  4. My ex-coworker owes me $1,400. All our communication is thru texting, including an IOU and an e-transfer record. Now he is lying to me about the repayment date and has blocked my phone calls. He never denied the fact that he owes me the $1,400 in his texts. Can I use our text messages as evidence in the court?

    1. Yes. Follow the rules in the article to authenticate and lay the foundation for the text messages. Often, in small claims court, the technical application of the rules is relaxed. As long as you have a clear copy or the phone itself and can easily and quickly provide the information to the court and also a copy to the opposing side.

  5. My daughter lent a “friend” $2,000.00 for a lawyer to fight a drunk driving conviction. The friend had promised verbally to pay my daughter back within two weeks. After several months she paid her half of what she owed. She now refuses to repay the rest of the money. She has a text conversation between the two of them on her phone, stating that she knows that she owes me the money. Suddenly she decided that she did not owe her the rest of the money and refuses to pay. Does this seem like a situation that the text would be admissible in court?

  6. An ex friend had harassed me through text however I only have a copy of her name on the text which I already printed it doesn’t show her number just her name. I also have another message that was sent to me as proof or a witness but I blacked out the name becuase i don’t want her to see who sent it can I use his for court ? I know that she sometimes leaves her phone alone on her desk at work sometimes when she is working with clients so I just want to make sure that this won’t be a reason why it’s thrown out since the evidence I have only has her name and not her number. What are my chances of winning my case?

    1. Yikes. No attorney I know likes to “give odds” on a final result in any court case, largely because presenting any cause of action requires analysis of many factors including substantive law, procedure, and evidentiary issues including but not limited to the one we’re looking at here. As long as you are able to present with certainty the fact that the text came from the “friend” and that the name was generated by the internal workings of the phone and not keyed in by you, you should meet that step of the analysis. The blog article addresses the many steps required to successfully introduce texts and each step is important. I wish you the best.

  7. My friend and his partner fought one night, sending text messages back and forth and he ended the relationship by text because he was angry. She died unexpectedly the next day and her family is trying to say they had broken up and they are claiming her estate due to her not having a will. They have children together. They often fought and spent time apart, but always ended up back together. Would these text messages stand up in court because it is hearsay – who knows if they would have got back together or not?

    1. Follow the steps in the blog article and you have a strong argument supporting your offering of the texts into evidence. It would seem the larger problem here is the dispute over estate assets and where there is no will, any and all estate assets will go to the closest actual family members. The children should have guardians who should work to handle the estate and for that I strongly suggest that you retain an estate/probate attorney in your jurisdiction. Good luck with all of this.

  8. Hello,

    I worked for a small employer for less than 3 weeks. The employer owes me less than $1000 after I quit. I took pictures with my phone of handwritten notes of the amount of work I performed for the 3 weeks. I also kept a record of exchange text messages between me and the employer. Also, some hand written notes and original document such as paycheck and pay stubs by the employer that documented illegal business practices which were sent to me through text messages from the employer phone, can I use that as evidence in Conciliation Court?

    Thank you for helping

    1. If you follow the steps for laying a foundation and authentication noted in the blog article I don’t see any reason why you can’t offer the items you mentioned into evidence. Remember, the process involves the litigants offering evidence and the court then ruling on admissibility. It is up to the court to determine whether evidence is admitted. Hire an attorney.

Leave a Reply

Your email address will not be published. Required fields are marked *



Attorney Myers is a member of the American Trial Lawyers Association, Massachusetts Academy of Trial Lawyers, and New Hampshire Trial Lawyers Association. The Law Offices of Andrew D. Myers offer a broad range of legal services in personal injury cases in Massachusetts (MA) and New Hampshire (NH) areas.

The information on this web site is offered for informational purposes only. It is not offered as, and does not constitute, legal advice. Laws vary widely from state to state. You should rely only on the advice given to you during a personal consultation by a local attorney who is thoroughly familiar with state laws and the area of practice in which your concern lies. This web site must be labeled advertisement in some jurisdictions.