Using Text Messages in Trial

Think taking a screen shot of that important text message will be enough to preserve it for trial? Think again.

Here is a text message screen shot:

The problem? It is completely fake. It is incredibly easy to go online and use a fake text message generator to make a realistic looking text message.

If you are just taking screen shots of text messages, the only way to prove they are real is to testify about how you took the screenshot. If you do that, you have just become a witness in your case.

Even if you do testify, it may not be enough. For example, phones show the contact name on the text message instead of the phone number (The above fake message says “Jimmy” instead of the phone number). If you want to fake a real message simply change the contact name for your friend then have your friend send a text message to your phone. Now that message will appear as though it is from the new name you set in your contacts. Using this method, you can make it look like that text message came from a husband, wife, defendant, or anyone else who could plausibly be sending you a text message.

Courts are becoming more and more skeptical of digital evidence as it is becoming increasingly easier to fake. In Tienda v. State, 358 S.W3d 633 (2012), the court stated the following about digital evidence:

“That an email on its face purports to come from a certain person’s email address, that the respondent in an internet chat room dialogue purports to identify himself, or that a text message emanates from a cell phone number assigned to the purported author—none of these circumstances, without more, has typically been regarded as sufficient to support a finding of authenticity.”

That screen shot you take might not be enough to authenticate the text message.

To introduce a text message at trial, you need more evidence than just the message itself. You need the data that links the text message to a particular phone number. Additionally, you need to have it properly preserved and have someone who can lay the proper foundation so those text messages will be admissible in trial. This is where a cell phone forensic examiner helps.

A forensic examiner will download the text messages from a cell phone in a forensically sound manner. This means downloading the text messages without disturbing or changing any of the data in the phone. The examiner will be able to produce reports with the relevant data, as well as preserve the downloaded data for use later in the case. Finally, the examiner will be able to lay the foundation at trial for the admissibility of the text messages.

Do the work now to preserve key text messages for trial. Do not wait and try to do it yourself – you are only putting your case at risk. You might be surprised how affordable it is to have a forensic examiner properly preserve this data for your case.