Save Those Text Messages: Electronic Evidence
Electronic evidence is fast becoming a vital part of testimony in a courtroom. In fact, cases have been lost or won on the basis of electronic evidence. These facts may sound scary, especially to those over 60, but they are a reality and must be taken seriously. Evidence, once it has been authenticated, can be used in the court. However, if a judge deems that the e-mail or phone text message is not able to be authenticated, or is hearsay, the resulting messages will be ruled inadmissible. So what precautions should a person take to avoid having electronic evidence tossed out by the court?
Probably the most important recommendation is not to delete any message you think could be of importance to your case. While it is true messages can be retrieved for a short time (Verizon says “a few days”) it is best not to delete but to physically save each message, both those sent and those received. Also be sure to save the entire message, not just a part you think important. Immediately after receiving or sending a text, it is wise to send the screen captures and e-mail texts to yourself. Make copies for yourself, your attorney, and the court. Keeping a file with copies in dated order will help when trying to find a particular piece of electronic evidence. These messages are considered written and visual records and can be supeoned by the court. Some attorneys have their clients send a copy or any outgoing messages before they are sent to be sure the messages don’t contain information which could hurt his or her client’s case. Also, don’t send any information that you wouldn’t want a judge to read.
- As mentioned earlier, authenticating electronic evidence is vital. This can be done by making sure the name and date of all messages sent or received is a part of the transcript. Most electronic devices now have that capability included with each message sent or received. There are also special attachments that will not only tell when a message was sent or received but that the message was delivered and what time it was read. Knowing what time a message was read helps to prove the person receiving the message actually read it. Too, there is a computer app called iExplorer, which downloads text messages. Essentially there are five ways to authenticate electronic evidence: the message itself, the person admitting to having written or received the message, the message being answered by the person receiving the text, a witness to the writing or receiving the text, and circumstantial proof.
- Hearsay is another issue that can prevent electronic evidence from being admissible. Be sure to seek out an attorney who understands the use of electronic evidence and can make sure your evidence will not fall under the definition of hearsay which, according to the online legal dictionary is “a statement made out of court that is made in court as evidence to prove the truth of the matter asserted”. However, the statement must be determined credible which usually means it must be said by the person who witnessed or knows first hand about the incident. For example, a hearsay statement might be made when Mary testifies that Jane told her she, Jane, saw Frank give a high-end stereo system to John so the system would not become a part of the marital assets. If this statement were sent in a text message it would likely not be allowed as evidence.
All in all, saving electronic evidence is an essential part of preparing for court. You will want to work closely with your attorney to be sure you are saving what can be used as evidence in a manner that will be acceptable to the court. If you live in Palm Beach, Martin, St. Lucie, Miami-Dade, Broward, Orange, or Hillsborough county in Florida or New York or Washington DC Family Law attorney Grant Gisondo can help. He has over a decade of practice and is up-to-date on the latest developments in the use of electronic evidence. His office in Palm Beach Gardens is open Monday through Friday 9:00 AM to 5:00 PM and, for new clients, on Saturdays from 8:30 AM to 1:00 PM. Attorney Gisondo offers an initial, free, in-office consultation where he can answer your questions regarding electronic evidence and share how he can help. You can call 561-530-4568 to make an appointment.