The high-profile case involving Amber Heard and Johnny Depp featured lots of explosive evidence, including text messages between the parties that described, among other things, necrophilia and severed fingers.
Many people found the trial, which was broadcast live on television, entertaining. But some viewers undoubtedly started thinking about their own text messages and whether they could someday come back to haunt them.
Are text messages admissible in court?
There are lots of reasons why a party may want to admit a text message as evidence in court. In a personal injury trial, for example, a text message may support or discredit the claim that someone was injured or that someone was texting and driving.
The state or federal rules of evidence determine what types of evidence are admissible. In most courts around the country, text messages are admissible. With that being said, there are a couple of hurdles that a party must clear before a judge will allow a text message to be admitted as evidence.
Most notably, text messages must be:
- Not outweighed by countervailing considerations, and
Is the text message relevant?
Suppose you file a civil lawsuit alleging that the defendant ran a red light and struck your car. In that case, you won’t be allowed to admit an unrelated text message between the defendant and his mother in which they discuss their favorite television show.
Evidence must be relevant in order to be admitted.
Evidence is relevant if:
- It has a tendency to make a fact more or less probable than it would be without the evidence, and
- The fact is of consequence in determining the action.
To put it another way, does the text message help support or disprove the claim? If not, it’s probably not relevant and won’t be admitted.
Is the benefit of admitting the text message outweighed by countervailing considerations?
The term “outweighed by countervailing considerations” sounds complicated, but it basically means that the text message will only be admitted if the benefit of admitting the text message isn’t outweighed by some other consideration.
The most common considerations that will keep a text message from being admitted include the following:
- Hearsay. Hearsay is an out-of-court statement made by a person and offered to prove the truth of the matter asserted. Generally speaking, hearsay is inadmissible in court. With that being said, there are lots of exceptions to the hearsay rule. For example, a statement may be admissible if it was made by a party to the case.
- Confusing. If a text message is likely to confuse or mislead the jury, it typically won’t be admitted.
- Unfairly prejudicial. Unfair prejudice may be grounds for excluding relevant evidence. Evidence is unfairly prejudicial if it’s likely to cause a juror to make a decision based on an improper reason. Evidence that elicits a strong emotional response (such as a text message that includes a photograph of a dead body) may be deemed unfairly prejudicial.
Is the text message authentic?
A text message has to be “authenticated” in order to be admissible. This sounds complicated, but it essentially means that an attorney must prove that a text message was written and sent by the person the attorney claims it was written and sent by.
To put it another way, you can’t just introduce a text message and claim that it was sent from the defendant’s phone. You have to provide some evidence that it was, in fact, a text message sent from the defendant’s phone rather than, say, a text message sent from your phone.
So how might you authenticate a text message? Text messages are typically authenticated using circumstantial evidence showing that the cell phone from which the text message was retrieved belonged to the person who allegedly sent the text message.
Obtaining a text message through a subpoena or court order
Text messages feel private, but the reality is that an attorney can obtain a court order or subpoena to gain access to a party’s relevant messages.
If the owner deletes the text message, the message can still be accessed from the phone of the person who received the text message. What’s more, most cellular service providers keep a record of the content of text messages for a certain period of time.
The bottom line: be careful what you text, as it may come back to haunt you.