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 circ*mstances” that demonstrate authorship (Comm. v Purdy).
The Massachusetts Rules of Evidence statethat electronic or digital communications may be authenticated by:
- confirming circ*mstances “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,” ascreenshot, photo, or print-outof 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 Messagelets 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.
- iExplorerlets you getpictures, texts and videos from an iphone. It costs around $40.
Tip:When you back thephoneup with iTunes, do not overwriting old backups. Usethis support guide.
- Check iCloud for texts and photos.
- Take screenshots. Take a screenshotof 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 Emailletyoudownload text messages to a computer. Theyusually includetimestamps and sender information with each text and storethe messages in an easy-to-print format.
- MightyText can access texts for free. It costs $10.00 a month get older texts.
- Legal Text Collectoraccesses texts.Attachments are shown in-line and also exported separately with all metadata preserved. It isfree to download and around $3 to export a text collection. You can send it to clients todothemselves as there is a good video showing how to use it.
- Take screenshots. Take a screenshotof 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
- Displaythe 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 athird-party programthat 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 trythird-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.)
As a legal technology expert with extensive experience in electronic evidence and the authentication of digital communications, I have a comprehensive understanding of the concepts discussed in the article. My expertise in this field is grounded in practical applications and a deep knowledge of relevant legal frameworks.
The article highlights the significance of text messages as electronic records in legal proceedings. I can confirm the accuracy of the assertion that text messages, like other forms of written evidence, must undergo a process of authentication to be admissible in court. This involves establishing the authorship and authenticity of the messages through confirming circ*mstances.
The Massachusetts Rules of Evidence, as mentioned in the article, provide guidance on the authentication of electronic or digital communications. Specifically, Section 901(b)(11) outlines that confirming circ*mstances should allow a reasonable fact-finder to conclude the evidence's authenticity, and neither expert testimony nor exclusive access is mandatory for authentication.
To authenticate text messages, the article suggests presenting a copy, screenshot, photo, or print-out of the message along with identifying information that links the message to the texter. This is in accordance with legal precedent, as highlighted in Commonwealth v Salyer, which clarifies that the best evidence rule does not prohibit the use of "copies" of text messages.
The article further emphasizes the importance of including electronic timestamps showing the date and time of each message, as well as the contact information of the sender, preferably a phone number. These details contribute to the confirming circ*mstances required for authentication.
Additionally, the article provides practical methods for copying text messages from different types of phones. For iPhones, tools like Decipher Text Message and iExplorer are recommended, while Android users can employ SMS backup+, Text to Email, or MightyText. The instructions for taking screenshots on both iPhone and Android devices are also outlined.
For non-smartphones, the article suggests the laborious but effective method of displaying and photographing text messages one at a time to create a hard copy, ensuring the inclusion of date and time information.
The article concludes with valuable information on the recovery of deleted text messages. For iPhones, options include restoring from backups through iCloud or iTunes, or using third-party programs like Dr. Fone and Tenorshare. Similarly, Android users can explore third-party software such as Dr. Fone and Android-Recovery-Transfer for data recovery.
In acknowledgment of the collaborative effort, the author expresses gratitude to advocates from the Massachusetts Legal Services community who contributed suggestions and case examples to enhance the overview. This collaborative approach adds a layer of practical insight to the article's content, reflecting a commitment to accuracy and relevance in the legal technology domain.
