In many cases, text messages and social media posts can be used as evidence. There must be some hurdles cleared, but most judges find that these can be used in their courts. That is particularly true in family courts, where child custody and divorce proceedings are typically heard. Since these courts are under state control, there are some variations depending on where you live.
Must Authenticate the Account
If you want to use a social media post of text as court evidence, the first hurdle that must be overcome is proving that the person associated with the account sent the message. Therefore, you should be very careful when sending text messages or posting to Facebook, Twitter, or other social media platform as those messages that you may send when you are emotionally charged can cause you to lose your case, be found in contempt of court, or prove that you have harassed someone.
Federal Rules of Evidence
If you appear in a federal courtroom, social media posts and text messages may be admissible. In that case, a lawyer needs to work with an expert to prove that the person sent the message or made the post. The authentication process ensures that someone did not pose as you or use your phone to send messages that you are unaware happened.
What Constituents Evidence
Authentication of evidence can be obtained in several ways. For example, someone may testify that they saw the person sending the text message or making the social media postings. Experts can also use the messages themselves to prove who wrote them by comparing writing styles, including slang, nicknames, or particular word usage.
If you send a message to the person you face in court, they are generally admissible. If you send the same message to someone else, then they may be seen as hearsay and not be admissible. Therefore, always check that you send your message to its intended recipient.
U.S. Supreme Court
While the U.S. Supreme Court has not ruled on if texts and social media posts can be admitted in court, they have made several rulings where that evidence was admitted. One of the first was the case of Elonis v. United States. In this case, a young amusement park worker threatened his wife, the police, and the FBI during several Facebook postings. Even though he posted YouTube videos showing similar wording and even said it was not a threat against any individual several times, the court still found that the defendant’s mental status must be considered. They, however, had no problem with the fact that the evidence was on social media.
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