Text Messages as Evidence: a How-To Overview

Text messaging leaves an electronic record of dialogue that can be entered as evidence in court.

Like other forms of written evidence, text messages must be authenticated in order to be admitted (see this article on admissibility by Steve Good). A defendant’s name on a text message is not enough to prove authenticity without some “confirming circumstances” that demonstrate authorship (Comm. v Purdy).

The Massachusetts Rules of Evidence state that electronic or digital communications may be authenticated by:

• confirming circumstances “that would allow a reasonable fact-finder to conclude that this evidence is what its proponent claims it to be,” and,
• that “neither expert testimony nor exclusive access is necessary to authenticate the source”

(§ 901(b)(11)).

You can authenticate text messages by presenting:

• a “copy,” a screenshot, photo, or print-out of the message that includes identifying information that links the message to the texter, and
• testimony or affidavit that the copy is a true and accurate representation of the text messages.

                  Note: the best evidence rule does not forbid the use of “copies” of text messages (Comm. v Salyer).​

When possible, copies of text messages should include:

• Electronic timestamps showing the date and time of each message.
• The contact information of the sender, preferably a phone number​.

How to Copy Text Messages from a Phone

iPhone

•  Decipher Text Message lets you download text messages to a computer. It usually includes timestamps and sender information with each text and stores the messages in an easy-to-print format.
•  iExplorer lets you get pictures, texts and videos from an iphone. It costs around $40.

               Tip: When you back the phone up with iTunes, do not overwriting old backups.  Use this support guide.

• Check iCloud for texts and photos. 
• Take screenshots. Take a screenshot of whatever is displayed on the phone’s screen at that moment. Like taking photographs, this method is easy to use, but can be tedious if the text messages are long or numerous, since only a single screen’s-worth can be captured at once.  How to take a screenshot on an iPhone.

               Tip: Swiping left on the text message screen will reveal individual timestamps for every line of text.

Android

•  SMS backup +, Text to Email​ let you download text messages to a computer. They usually include timestamps and sender information with each text and store the messages in an easy-to-print format.
• MightyText can access texts for free.  It costs $10.00 a month get older texts. 
• Legal Text Collector accesses texts. Attachments are shown in-line and also exported separately with all metadata preserved. It is free to download and around $3 to export a text collection.  You can send it to clients to do themselves as there is a good video showing how to use it.
• Take screenshots.  Take a screenshot of whatever is displayed on the phone’s screen at that moment. Like taking photographs, this method is easy to use, but can be tedious if the text messages are long or numerous, since only a single screen’s-worth can be captured at once.  How to take a screenshot on an android phone or tablet.

               Tip: The screenshot process can vary between android devices, but in most cases, you can take a screenshot by pressing the power and volume down buttons simultaneously.

Non- Smart phones

• Display the text messages or photo on the phone one at a time and taking a photograph of each. This might be laborious, but it will result in a hard copy of the texts. Be sure to capture the date and time of the message as well as the sender information.

How to Recover Deleted Text Messages

Even if a text message has been deleted from a phone, there is a chance you can still recover it.

iPhone:

• Option 1: If the iPhone was backed up using iCloud or iTunes, you can try recovering old text messages by restoring the backup file to the phone. Note that restoring the backup file to the iPhone will erase any data - texts, pictures, etc. - that have been created since the time of the last backup. Here’s a detailed explanation of this retrieval method.

• Option 2: Try a third-party program that can search a phone for ‘dormant’ data and bring it back to life.  Dr. Fone and Tenorshare have good reputations.​

Android:

• To recover data from an Android device try third-party software. Dr. Fone and Android-Recovery-Transfer are two possibilities. 

(Author's note -- thanks to the many advocates from the Massachusetts Legal Services community who contributed suggestions and case examples to this overview.)