Email and Text Message Evidence in Divorce Proceedings
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UPDATED: Jul 16, 2021
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In order to prevail in a contested divorce proceeding a party must produce evidence that proves his or her case, and emails and texts are emerging as among the most important types of evidence used in a divorce action. There are several ways to collect email and text evidence.
Emails and Text Messages Sent Directly to the Opposing Party
Despite the fact that people are aware of the way the law works to some extent in family court, during a divorce or custody proceeding many people seem to forget that anything in writing may be used as evidence against them. In family court, an overwhelming number of parties come to court prepared with printed emails and text messages sent to them by the other party. Text messages received can be uploaded to a computer and printed using a smartphone app.
Sometimes, text messages and emails go back several years, and show evidence of verbal abuse, admissions of other types of wrongdoing, and other things that the person who sent the messages might not have sent had they known they would turn up in court as evidence to be used against them.
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Other Stored Electronic Evidence
In this day and age, though, emails and text messages can also be retrieved and used by a party who was not the recipient of the message originally. Sometimes, the other party may produce email evidence when requested to do so through discovery. Otherwise, requests can be made to allow inspection of the entire computer, and a computer expert can often retrieve emails and documents even after they were erased from the hard drive by a party reluctant to turn them over.
Text messages can be retrieved by subpoena to the cell phone provider. Only an attorney can subpoena documents, and a good reason for requiring private messages must be shown. It is also possible for the other party to take legal steps that may result in a court denying access to some of these documents.
Email Evidence and Privacy Rights
Federal and State laws prohibit unlawful interception of electronic communications, so a spouse that accesses the other spouse’s computer without authority should be cautioned that such activity may result in the exclusion of the electronic evidence and subject them to legal sanctions. However, spouses usually have access to each others computers or the same computer, so unless the parties are already separated when the emails are intercepted, this isn’t likely.
To be able to admit email evidence, the party introducing the evidence must demonstrate that he or she was authorized to access the computer on which the evidence was stored. If the computer is located in the marital home and accessible to both spouses, the court would likely hold that both parties were authorized to use the computer, particularly if it was purchased with marital funds and used by both parties.
Authenticating Electronic Evidence
The party introducing the evidence must be able to authenticate it, which means they must be able to prove that the opposing party authored the email or text. The easiest way to authenticate the electronic communication is to have the opposing party admit that they sent the email or text. In family law cases, evidence is commonly introduced as part of a declaration or motion, as well, so it may not be necessary to authenticate a damaging message during a trial.
Although text messages and email may be hearsay, family law courts are notoriously lax and may consider evidence produced by a party even if it seems to violate the law about not presenting hearsay evidence.
Alternatively, an eyewitness can authenticate the communication by testifying that he or she saw the sender create or publish the email or text. If that is not possible, circumstantial evidence may be used. For example, the email or text may be self-authenticating if it contains information that only the sender would know.
The underlying reason for authentication requirements is the possibility that a third party could have used the party’s computer to send an email. Courts are hesitant to attribute an email or text to a particular person merely because an email is identified with a unique email address. Without further authentication, an email should not be admitted as a statement by the holder of the email account. Although it is easy to prove that a text message came from a particular phone, the same reasoning applies.
This reasoning wouldn’t be likely to apply if the message was sent after the parties separated.