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Text Messages as Evidence: a How-To Overview

Date: 
02/25/2016
Author: 
MLRI, et al

Text messaging is now a commonplace method of communication. For better or worse, 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 Rule of Evidence states 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, further, 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” - 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:

Depending on your evidentiary needs and level of technical expertise, there are a few different ways to copy text messages from a phone into a format you can present as evidence.

Photographs:

If the phone is not a smartphone (has limited functionality outside of texting and making calls), consider displaying the text messages 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.

Screenshots: Most smartphones have a built in feature that allows you to take a screenshot - a picture 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.

Apps: If you are a bit more tech-savvy and are dealing with a large volume of text messages, there are several free applications for both iPhone and Android that will enable you to download text messages to a computer. These programs usually include timestamps and sender information with each text and store the messages in an easy-to-print format.

Here are a few reliable options:

How to Recover Deleted Text Messages:

Even if a text message has been deleted from a phone, there’s 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: There are a number of third-party programs that can search a phone for ‘dormant’ data and bring it back to life. There are no guarantees with this process, but Dr. Fone and Tenorshare have good reputations.​

Android:

  • To recover data from an Android device, it seems your best bet is third-party software. Dr. Fone and Android-Recovery-Transfer are two possibilities. Again, no guarantees, but worth a try

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


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