What Does Admissibility Mean In Texas?
Whenever a lawyer attempts to introduce evidence at trial, the opposing attorney has an opportunity to object. This objection typically states that the evidence is not relevant and, therefore, not admissible. This generally leads to a discussion of what is relevant and what is not.
The basic rule on relevancy in Texas is:
A matter is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Texas Rules of Evidence, Rule 401
Evidence which is relevant may still be excluded by the court. For example, even though a photograph of a traffic accident may show that the light was red for the person involved in the crash , it may be excluded if the person’s red color is not clear. Another thing that may cause a judge to exclude a piece of evidence is that it relies on hearsay.
Hearsay is testimony trying to prove the truth of the matter asserted in the out-of-court statement. In other words, if someone testifies saying that they did not pass a certain location because their girlfriend texted them and told them the traffic was terrible, their testimony is generally considered hearsay when used to prove they did not pass the location.
Finally, in order for any evidence (such as a text message) to be admissible at court, the party offering the evidence must properly authenticate it. This is a simple way of saying that the party offering the text messages must verify to the judge that the text messages are indeed the messages we want to use at trial.
What is Required for Admissibility of Text Messages Under State Law
Under Texas Evidence Rule 901, proof must establish the identity and genuineness of a piece of evidence to have it admitted into court. Text messages on mobile devices generally satisfy this rule, but there are a few things that you should know about how such evidence is submitted to court. When it comes to text messages, you will need to prove that those messages were written by an individual who possessed the mobile device and was able to access the messages. You must also be able to prove that the text messages were not altered in any way. Generally speaking, if you can provide these proofs, your text messages will be allowed into court.
A crucial aspect of text message evidence is the context. A judge may deem a piece of evidence irrelevant based on the context in which it is provided. For example, if two people texted one another on a regular basis, and one person denied having contact with the other, the judge may allow the text messages into court as the evidence would be directly related to the case. With text messages, you must be able to show that the messages in question were retrieved from the actual mobile device of the individual in question. If a lawyer were to take text messages from a client’s device and provide them in court without additional proof, the authenticity of those text messages could be called into question. Generally, you must be able to show that the messages were properly retrieved from the device.
In some cases, a judge may allow text message evidence if you can show that the messages were retrieved with a reliable service/program. It is recommended that you speak with your lawyer if he or she intends to introduce text messages into court. Finally, if the events of your case involved text messaging, it is highly likely that your attorney will seek out text message evidence. If you think that your text messages could be beneficial to your case, make sure to alert your lawyer and provide him or her with the necessary information. Of course, it all depends on the case you’re involved with. For example, if you suspect an individual of cheating (perhaps through text messaging), you’ll want to take a look at what your text messages might paint as a result.
Proving Authentication of Text Messages
Unless opposing parties are able to stipulate the authenticity of text messages, the parties must generally lay a foundation for authenticity to allow text messages to be admitted under Texas Rules of Evidence section 901. This means that a party must show that the text messages are what they claim to be, i.e. a particular writer wrote the text messages and the message were exchanged with a specific recipient.
Here are a few of the different methods that parties can use to authenticate text messages:
- Use Expert Testimony – Parties can use expert testimony (but not secret agents). Tex. R. Evid. 901(b)(9). Such testimony might involve someone explaining how to tell whether texts have been tampered with, what to look for in metadata, etc. Experts on a cell phone’s applications may be able to determine whether texts were sent or received.
- Use Non-Expert Testimony – Parties can use non-expert testimony from one of the parties to the text messages. Tex. R. Evid. 901(b)(2). The witness just requires knowledge that is sufficient to differentiate between the text messages and another source, like a third-party application, that could be confused for the text messages.
- Use Metadata – Since text messages are short, distinct items, metadata downloaded from a cellphone or other phone history might be sufficient to meet the foundation burden. Also, it is likely that a cellphone on which a text message appears has sufficient relevant metadata regarding the time and content of the text message.
- Use Third-Party Records – If the text messages involved two phone numbers, parties might be able to authenticate the text messages by producing records from a third-party who can confirm that those phone numbers were the ones involved in the text message conversation.
Legal Tests and Objections
One of the most common evidentiary challenges to address in a family law case that involves text messages or messages from an instant messaging service such such as iMessage, WhatsApp, Facebook Messenger or another platform is authenticity. Although Section 132.001 of the Texas Civil Practice and Remedies Code entitles a party to comply with a subpoena for a cellular device, unless the privilege is expressly stated otherwise, this does not mean that the full text history can be retrieved from that device. Courts throughout the state have had to decide whether the part of the text message conversation that was printed out is sufficient to lay the proper predicate for admissibility. In Perez-Tarazon v. State, No. 01-12-01090-CR, 2014 WL 8872311 (Tex.App.—Houston [1st Dist.] December 15, 2014, no pet. h.) the Court of Appeals for the First District of Houston, Texas, held: In contrast, in Garcia v. State, 426 S.W.3d 278, 292 (Tex.App.—Houston [1st Dist.] 2012, pet granted), the court held that the printout exhibited by the State was not self-authenticating. The State did not provide any of the recipient’s passwords or other security information for access to the app . Id. The State also failed to provide any information about how the printout was created or obtained, and it did not provide any testimony or affidavit from the custodian of the [messaging app] records. Id. at 292-93; see also Tex. R. Evid. 901(a) (providing that requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support finding that matter in question is what proffering party claims it is). The court thus held that the printout was inadmissible unless the State proved that the printout was created and obtained from the app through the recipient’s account, not just that the contents were sent from a source that included the recipient’s phone number. Id. at 292. Another common challenge to the admissibility of text messages is privacy. There are several articles online and active litigation involving issues related to the privacy of data contained on a cell phone or other electronic device. Due to the recent advancement of technology, the courts are still grappling with how to implement these traditional areas of privacy law to the recent advancements of technology and how it is evolving.
Relevant Case Law
Case Law is on Your Side (Mostly).
While this area of law is constantly developing, several Texas cases have drawn the line on when text messages are admissible as evidence. In Tamez v. State, 11 S.W.3d 198, 207 (Tex. Crim. App. 2000), the Court of Criminal Appeals concluded that a trial court did not abuse its discretion when it admitted a transcript of a computer-aided dispatch system, which included a text communication from a police officer about an assault. The court reasoned that the "dispatch log is sufficiently reliable for the limited purpose for which it was offered by the State". For future cases, the court noted, "officer’s use of some kind of computerized notation was commonplace and [future courts] will not need to test the reliability of other computerized dispatch log records to determine whether they are sufficiently trustworthy to be admitted". See, e.g., King v. State, 649 S.W.2d 42, 45 (Tex. Crim. App. 1983) (holding that computer printouts of customer accounts had sufficient indicia of reliability and business records exception applied); Kelly v. State, 36 S.W.3d 564, 567 (Tex. Crim. App. 2001) (holding that requirements are equivalent taking into consideration that "records were created and maintained in the ordinary course of business and regularly relied upon").
In contrast, in Miller v. State, 40 S.W.3d 215 (Tex. App. – San Antonio 2001, no pet.), the court of appeals upheld the trial court’s decision to exclude a written statement found in text form on the State’s computer as hearsay. The notes were of a conversation regarding a shooting at a residence. The reporting officers testified that they were placing this note into their report and were going to contain it at a later time, but never did because they lost the notebook on which the statement was written. The court held that "the circumstances surrounding the preparation of Miller’s notes do not indicate that they were prepared as part of the business responsibilities of the officers". Id. at 217. The officers were free to come and go as they pleased and "there was never any indication that they were intending to transcribe their statements for the purpose of the case against Miller". Id. The court also found that the State was not acting in the regular course of business by transcribing the notes for use against the defendant.
Depending on the circumstances, courts have generally treated text messages similarly to other business records and based admissibility on trustworthiness. See, for example, In re A.S., 21 S.W. 3d 581 (Tex. App. – Fort Worth 1990, pet. dism’d w.o.judgm’t) (evaluating text messages for admissibility regarding sexual abuse of a child); State v. McIntyre, 406 S.W.3d 292, 308 (Tex. App. – Houston [14th Dist.] 2013, pet. granted); State v. Novembrino, 30 P.3d 735, 747 (N.M. 2001) (a text message could be authenticated when the declarant was in possession of the device used to send the text, when the message contained a comment about the device used to send it, and when the defendant was found with the device the message was sent from).
The rules of admissibility of text messages are largely governed by the rules of hearsay. Most often, courts have considered the physical creation of the message and the circumstances surrounding the transmission of the message to determine whether the content of those messages can be admissible as proof of what was conveyed.
Helpful Hints in Presenting Text Messages
The best practice for attorneys is to opt for using text messages in .pdf format for trial and to immediately take the steps necessary to properly preserve them. Once destroyed or altered, they cannot be reused or simply reset from a backup. Backup your device daily so you have a copy to forensically image a device if necessary. While this may seem unnecessary, some attorneys will want the "original." There are other .pdf apps available to make a pdf from a text message, just search for "text to pdf app" on your device’s app store for several options. If it is not currently possible to use .pdf , opt for screenshots over .html files. This avoids conflicts that arise with software, hidden metadata, different programs or versions of Word and so on. Also get the names of whomever took the screenshots and the dates that they took them. Put the screenshots into the case file as soon as possible and shut down the phones to avoid overwriting before issuing a litigation hold letter. Also consider adding an application to the device to facilitate the process of extraction. For iPhones use iMazing and for Android use Tenorshare Ultdata or dr.fone by wondershare.