, Derry, New Hampshire


May 22, 2014

About the Law: Text messages may be used in court

Are text messages admissible in court? After an accident, the other driver admitted she wasn’t paying attention.

In a text later, the driver said she was sorry, that she’d been on the cellphone and offered to pay outside of insurance. Now that her insurance company is involved, she denies everything. Is the text admissible in court?

Text messages present courts with new challenges when deciding whether they are admissible evidence. But, considering whether to allow the evidence requires looking at time honored rules of evidence.

Electronically stored information, what the courts call “ESI”, includes texts, emails, various digital postings and websites. Courts generally address a series of evidence issues before admitting ESI. Here are the basics:

1. Is the electronic evidence relevant?

2. If so, can it pass the test of authenticity?

3. Is it hearsay?

4. Is the electronic evidence an original or an allowable duplicate?

5. Is any probative value of the ESI outweighed by unfair prejudice?

The text must pass each step. Failing any one means it’s excluded. For example, proving the text relevant might present a low threshold challenge, but then the question is showing authenticity.

Establishing the identity of the sender of a text is critical to satisfying the authentication requirement for admissibility. Showing the text came from a person’s cellphone is not enough, cellphones are not always used only by the owner.

So, courts generally require additional evidence confirming the texter’s identity. Circumstantial evidence corroborating the sender’s identity might include the context or content of the messages themselves.

Text messages and other ESI are hearsay by nature. They’re out of court statements offered to prove the truth of the matter at issue. But court rules, which vary from jurisdiction to jurisdiction, are full of exceptions and definitions of “non-hearsay.” In your case, if you pass the authenticity test, this is either an admission or a statement by a party opponent and should be admissible.

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