Many people assume text messages are private, but that’s not necessarily the case—as recent momentous events have shown. Text messages have played a pivotal role in the Jan. 6 hearings, and could be a foundation for legal action against those under scrutiny. Last week, a watchdog disclosed that the U.S. Secret Service deleted important text messages related to the attack, showing just how significant text message evidence can be.
Texts have also famously figured in high-profile court proceedings like the Michelle Carter “texting suicide” trial, the Anthony Weiner sexting trial, and, most recently, the Amber Heard-Johnny Depp defamation trial.
Like social media posts and other forms of digital communication, text messages can be used as evidence in court and can be instrumental in the outcome of both criminal and civil cases.
“People say things in texts that they then regret,” says Larry Buckfire, president of Michigan law firm Buckfire Law. “It’s so easy to say things you shouldn’t say or say things impulsively that you can’t take back once they’re documented.”
Here’s what to know about how text messages can be used as evidence.
How can text messages be used as evidence?
Text messages can be used to prove wrongdoing or support a defense position in a wide variety of court cases, ranging from family law matters like divorce and child custody to personal injury lawsuits to criminal trials.
Once a text message is admitted into court, it’s fair game—and can potentially make or break a case. “In a court proceeding, text messages are essentially a recorded conversation or, at least, a written expression of your intent to say something or do something,” Buckfire says. “They’re documentation of your thoughts, ideas, and expressions.”
In criminal cases, Buckfire says text messages are often used to show a person’s motive, intent to commit an alleged crime, or state of mind ahead of time. “You generally have to show that a person intended to commit a crime. So if they argue it was unintentional or inadvertent, text messages may show they intended to do something,” he says. “If they’re texting threatening messages to somebody or explaining a plan to commit a crime or to cover something up, that’s preserved.”
In the wake of the Supreme Court ruling in June to overturn Roe v. Wade, concerns are on the rise about the potential use of text messages, location data, and other digital information to punish people who discuss or search for information about access to abortion services. In the past, text messages have been used as evidence on a number of occasions against women facing criminal charges related to the end of their pregnancies.
As demonstrated by the Jan. 6 hearings, text messages can also be used as evidence in congressional hearings, which can ultimately lead to litigation. The House Jan. 6 committee has obtained thousands of text messages relating to top White House officials’ actions in the weeks leading up to the 2021 attack on the Capitol. During Tuesday’s hearing, the committee revealed text messages between former Trump campaign manager Brad Parscale and former Trump spokeswoman Katrina Pierson in which Parscale stated that Trump’s Jan. 6 rally speech was “asking for Civil War.”
Text messages have also been used to indict some of the individuals who participated or attempted to participate in the insurrection. One man, who arrived in Washington that day with 2,500 rounds of ammunition, sent text messages threatening to kill Washington Mayor Muriel Bowser as well as House Speaker Nancy Pelosi and said in a text that he was, “Ready to remove several craniums from shoulders.” Another texted a friend bragging he was “one of 700 inside” the Capitol.
As Darrell M. West, vice president and director of governance studies at the Brookings Institution, wrote in the weeks following the attack, “Taken together, the information gathered before, during, and after the riot demonstrates how technology enables both insurrection and legal accountability.”
When can text messages be used in court?
Before text messages can be introduced into a case, they have to be legally obtained as evidence. Buckfire says that if a person doesn’t voluntarily provide their cell phone, an attorney can obtain a court order or subpoena to gain access to relevant messages. Even if the owner of a phone has deleted certain messages from their own device,those texts can still be accessed from the phone of the person who received the messages. Most of the major cellular service providers also keep a record of the content of text messages sent and received by their account holders for a short period of time.
If a person has yet to be charged with a crime, Buckfire says law enforcement can seek a warrant from a judge or magistrate to search a phone. “You have to show good cause as to why the police need the phone and why it’s necessary for the investigation,” he says. “Once there’s a warrant, the police can go confiscate the phone, have it examined, and download [its data].”
It’s more difficult for law enforcement to get a hold of encrypted messages sent via secure messaging services like iMessage and WhatsApp. But if you use a cloud-based backup for these messagings apps, the content can still be accessed using special “cloud extraction” technologies, according to Privacy International.
Text messages must also be authenticated to be properly admitted into evidence. That means that an attorney must prove that a text was actually written and sent by who they say it was. According to the American Bar Association, text messages can be authenticated by witness testimony or by circumstantial evidence like “the author’s screen name or monikers, customary use of emoji or emoticons, the author’s known phone number, the reference to facts that are specific to the author, or reference to facts that only the author and a small number of other individuals may know.”
There’s a lot of scrutiny on admissible evidence in court, Buckfire says. “You can’t just bring in a phone and say, ‘Here’s this phone and this message,’” he says. “You have to show that a text is reliable, that it has useful value in a case, and that it’s not unfairly prejudiced.”
One of the most valuable lessons Buckfire says he’s learned from practicing law is to be careful about how you communicate things. “What you put in writing will come back to haunt you,” he says.
