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Text Message Apps and the Preservation of Evidence in Your Family Law Case

3d-illustration-mobile-technology-mobile-phone-1412071By: Jessica A. Bryant

As technology advances, it also impacts the way parties to a Denver family law case may try to present evidence to the court. However, these advancements are not always for the better. One major development is the creation of cell phone apps that purport to allow you to print off the text message from your phone. These apps make it sound perfect for a court proceeding- what better way to present your text message evidence to the court than through an app that coverts your text messages into one complete document? The problem with these apps is the method by which they convert the text messages to be printed out. If you try using such an app, you will find that what is printed out is basically a document of typed conversations. It really looks no different than what you could create in a word processed document. In other words, it is not as if the app is printing the text messages as depicted on your phone. The app converts the text message format and, through this conversion, changes the reliability/authenticity of the text message conversation.

In order to admit a document into evidence, pursuant to the Colorado Rules of Evidence, the court needs it to be authenticated.  In other words, the court typically needs a witness to confirm that the document is what it purports to be. However, getting a document admitted is only the first step. Once a document is admitted the court gets to decide how much weight it gives a particular document.  In other words, a report from an impartial expert on the case, who may have conducted a detailed investigation, met with the parties, the children, and made insightful recommendations to the court, may be given significantly more weight than a letter from a party’s mother saying they are a great parent. Both documents may be admitted because the expert and mother confirmed the submitted document was what the attorney was claiming it to be. That does not mean, though, that the judge will view both documents with the same amount of consideration.

The text message app is problematic not only because it impacts the authenticity of the text messages, it also impacts the weight the judge may give the messages if admitted. In other words, it is possible the court could refuse to even admit the text messages converted and printed from the app into evidence (meaning the judge would not read them) because there is no way to verify the messages are what they claim to be. Unless a party reviews the text messages converted and printed from the app with all the text messages on their phone, they cannot definitively say the messages are a complete and accurate record of the text message conversation. Additionally, because it is an independent technological app doing the converting, and not the party, there may be issues with chain of custody such that the party cannot definitively confirm how the text messages were converted or that they are accurate.

As discussed above, getting the text messages admitted is only half the battle, though, you still want the judge to give sufficient weight to the evidence you are presenting. The biggest problem with these text message apps is that the text message chain they generate appears no different than what a party could have sat down at their computer and typed up. The text messages no longer appear as part of a text message chain, nor is there any verification of sending party, etc. What will carry significantly more weight with the court is screenshots of the actual text message chain from your phone. That shows the actual conversation to the court (obviously it is not foolproof, as text messages can be deleted, sending parties changed, etc., but it has more reliability than what is generated by the text message app, which means it will likely carry more weight with the court).

Though I generally find text messages to be used more often when dealing with a child custody case, they might also be used related to property or support issues in a divorce case.  The best way to preserve potential text message evidence is to screenshot it when it comes in and email that screenshot to yourself. That way you do not lose the message if it is auto archived and you have the conversation to show the court in actual form.  I have seen too many cases in which a client believes they have text messages of worth, but their phone goes missing or is broken, such that the messages cannot be retrieved.  Therefore, taking screenshots and emailing them to yourself is the best way to preserve the text message record.  More and more parties rely on these text message apps and allow their actual texts to be deleted or archived, which can adversely affect their case with the court tied into admissibility or reliability.  Text messages may be strategically helpful for various reasons.   You just need to make sure they are presented in a usable, and admissible manner.   Apps converting text messages into a document of the relevant conversation just are going to cut it in court.

 

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