Can text messages be used as evidence in court? A US guide

Yes. Text messages can be used as evidence in court in the US, including in divorce, custody and protective order cases. The judge has to be satisfied that the messages matter to the case and are what you say they are. That usually means showing who sent them and that nothing has been changed.

This guide explains how US courts look at text messages, and how to keep and submit them. It is general information, not legal advice. Every state has its own rules, so check with a family law attorney where you live.

What courts look for in a text message

Before a judge will rely on a text message, it generally has to clear a few hurdles. Each court applies its own rules of evidence, and the details differ from state to state.

The main questions are:

• Is it relevant? Does the message help prove or disprove something that matters, such as a threat, a missed pick-up or an agreement about the children?
• Is it authentic? Is the message really from the person you say sent it, and is it unchanged?
• Is it hearsay? If so, does a rule or exception still allow it in?
• Is the copy good enough? Does the printout or screenshot accurately show what was on the phone?

Authentication: proving who sent it

Courts usually want to know a message is genuine: that it came from the person you say sent it, and when, and that it has not been edited. The most common ways to show this for messages are:

• Testimony from someone with knowledge. You can explain that you received the messages on your phone, from a number you know belongs to your ex.
• Distinctive content. What a message says, and how it is written, can be considered along with everything else. A message that mentions things only your ex would know, or replies to something you just sent, can help.
• The phone number and other records. Evidence that the number is theirs can support the link. This might be earlier messages, or phone company records your attorney may be able to obtain.

Your ex may say someone else sent it. The more ways you can connect the message to them, the better.

Hearsay, and why your ex’s own words are different

Hearsay is an out-of-court statement offered to prove that what it says is true. Hearsay is generally kept out unless an exception applies. On its face, a text message is an out-of-court statement.

But courts often treat the other party’s own words differently. In many courts, if your ex is the other party in your case, their own texts offered by you against them are not treated as hearsay.

Other messages are less simple. A text from a friend or relative of your ex may be hearsay unless an exception applies. Your own messages can also be treated differently when you are the one offering them. State rules on this vary, so ask your attorney how each message can be used.

Originals and copies: the “best evidence” rule

When you are proving what a message says, courts generally want the original or an accurate copy. For phones, a printout or export that accurately shows the message is usually treated as good enough.

A copy can be questioned if there is real doubt about whether it is genuine, or if relying on it would be unfair to the other side.

If messages are lost, a court may still hear other evidence of what they said. But that is much harder if you deleted them yourself. That is one more reason never to delete messages from your phone.

Screenshots versus full exports

Screenshots are common, and courts do see them. But a screenshot shows only what fits on the screen. It may cut off the date, hide the phone number behind a contact name, or leave out the messages either side.

A fuller record is usually more convincing. Where you can, keep:

• The sender’s phone number, not only the name you saved them under.
• The date and time of every message.
• The messages before and after, so the context is clear.
• The original phone, switched off from automatic deletion and backed up somewhere safe.
• A full export of the conversation that includes these details, if your phone or service can produce one.

Screenshots are still a useful backup. Just do not rely on them alone, and never crop or edit them.

Keep the whole thread, not the worst messages

It is tempting to save only the most hurtful messages. But a few messages without context can look one-sided.

If you produce only part of a thread, the other side can usually ask for the rest to be shown too, so the court sees the full picture. Expect the rest to come out. A complete, unedited record shows the pattern and protects your credibility.

Do not alter, edit or delete anything

• Never edit a message or screenshot, even to blur a detail. If something needs hiding, ask your attorney how to redact it properly.
• Do not delete messages, including your own replies that you regret. Gaps can be noticed, and they invite questions about what else is missing.
• Turn off auto-delete settings that clear old messages.

How to submit text messages as evidence

The process depends on your court, so check your local rules or court self-help centre first. A guide for people representing themselves, 10 Steps for Presenting Evidence in Court from the National Council of Juvenile and Family Court Judges, suggests:

1. Decide ahead of time whether to print, photograph or transcribe each message. The guide warns you may not be able to show messages on your phone in court.
2. Bring three copies of each printed exhibit: one for the other party, one to be admitted as evidence, and one for you.
3. Check whether you must give the other party copies before the hearing.
4. Be ready to testify about the sending and receiving phone numbers, how you made the copy, and that it is complete and accurate.

The other party can object. The judge then decides whether to admit the messages and how much weight to give them.

Text messages in family and custody court

Texts often matter in custody cases. They can show how parents communicate, whether schedules are kept, and whether there are threats, insults or attempts to control. Judges look at what is best for the children, so a pattern over months usually says more than one bad day.

How strictly the rules of evidence are applied, and what paperwork is needed, varies by state, by county and by judge. A family law attorney in your state can tell you what your court expects. If cost is a barrier, your state’s court self-help centre or a legal aid office may be able to help.

Remember that your own messages may be read too. Keep your replies short, factual and focused on the children.

A warning about recording calls

Written messages avoid this problem. If you need a record of an agreement, ask for it in writing.

How FenceChat helps

FenceChat gives you a FenceChat email address and, on our SMS plans, a FenceChat number to give your ex instead of your own. Their messages are filtered before they reach you: the practical details come through and the hostility is filtered out. The untouched original is kept in your Archive with its date and time, so nothing is lost and nothing is edited.

If you feel unsafe

A good record helps, but it is not a safety plan. If messages include threats, or you are afraid of your ex, reach out:

• Emergency: call 911 if you are in danger.
• National Domestic Violence Hotline: call 1-800-799-7233 or text START to 88788 for confidential support, 24 hours a day. More at thehotline.org.
• Protective orders: ask the hotline or an attorney about protective orders where you live.

If you think your phone or computer may be monitored, use a device your ex cannot access.