In so many newsletter articles prior, we have stressed the fact that evidence collected from social media is admissible in court. On social media, there is no reasonable expectation of privacy. But what about text messages? Text messages are a form of communication, but not in a public forum (such as Facebook, Twitter, etc.). What are the hurdles to overcome when submitting text messages as evidence?
Judges are accepting, just like cases including social media evidence, that when a text message is written and sent, there is no longer an expectation of privacy once it has been received by the third-party.
It must be noted that when text messages are used in the course of a crime or civil matter, first, it must be shown that the text messages were on a phone owned by the accused party, that the accused party wrote the text messages, and that the text messages were received by a third-party.
Proving so is relatively simple. For example, showing that the phone number is listed to the accused party, or producing phone bills/records to show the owner of the phone and phone number. To further prove that the text messages came from the accused personally, the owner can testify or the third-party who received the test messages from the accused can testify. Furthermore, proving that the phone number and contact name of the receiving party is in the accused’s phone can help show that the message itself was received.
Sounds easy enough. However, not every case can be that simple. Prepaid and burner phones are readily available, phones can be exchanged, sold or even disposed of, which makes matters more difficult.
With technology ever-changing, and text messaging being a relatively newer form of communication with laws still developing surrounding the submission of the evidence, difficulties can surely arise. But that does not mean we should discount it altogether. There is a wealth of information to be obtained if completed properly.
And remember, text messages that have been deleted are NEVER truly deleted. Through the help of cell phone forensics, the evidence can ALWAYS be recovered.