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:
- Is the electronic evidence relevant?
- Can it pass the test of authenticity?
- Is it hearsay?
- Is the version of ESI offered the best evidence?
- 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.