It’s a safe guess that everyone has communicated words at one time or another they later regretted. You might have gotten away with such a gaffe decades ago, but in the electronic age, your words can easily be captured for posterity. If you later end up in court, both voicemails and text messages are admissible as evidence against you within certain parameters.
Relevance to the Case
A voicemail or text message cannot be used against you at trial unless it has some bearing on the case, but this is true of all evidence, not just that of the electronic variety. If you leave a message or send a text message to someone stating you despise your boss, this would not be admissible in court unless it relates to the lawsuit, for example, because your boss is claiming you assaulted him or you’re involved in an employment dispute. Your adversary – your opponent’s attorney in a civil suit or the prosecutor in a criminal proceeding – would have to establish a correlation before the evidence might be admitted, and even then, the judge would first decide whether it unfairly affects you in the proceedings.
Issues of Hearsay
A common rule of evidence is that hearsay is rarely admissible. Your coworker can’t testify that someone else told her that you committed a certain act. The only way your adversary could present this evidence to the court would be to have the “someone else” take the stand and testify to it directly. Both text messages and voicemails fall outside the scope of hearsay when they’re your personal communications – you texted or left the message so it came directly from you. There’s no middleman.
They Must Be Authentic
The biggest hurdle to getting texts and voicemails admitted as evidence is authentication. It must be established by additional evidence that the person who allegedly conveyed the messages actually did so. This can be tricky with text messages. If you’re sitting at a bar with your cellphone beside you and you go to the restroom without taking it with you, anyone can pick it up and text a message, pretending to be you. The authentication rule requires that your adversary prove through other evidence that you personally sent the text. This might be possible if it can be established that you always use certain emoticons or phrases and the text message includes them – but then, someone else might be aware of your habits and attempt to frame you. Voicemails are different; a recording captures your voice and any expert can identify it as your own. The actual content of the voicemail might be disputed because the message may have been electronically altered to infer something you never actually said, but experts can usually detect this.
Every state has wiretapping laws that regulate whether you can be recorded without your knowledge. In many states, you must be aware that your conversation is being electronically captured or the recording is illegal and inadmissible as evidence. If you voluntarily leave a voicemail, you did so knowing that your words were being recorded so wiretapping laws would not apply. An exception exists if the individual who accessed the message had no authority to do so – it wasn’t his phone and he somehow hacked into it. Most courts do not consider text messages to be private communications. When you text something, you cannot reasonably expect that it’s a private communication between you and the person you sent the message to; you’re aware, or should be, that anyone else could easily pick up the device and read it. As such, law enforcement does not generally need a search warrant to look at the texts on your cellphone and the evidence may be admissible in court. This is a hotly debated issue, however, and the rules can change at any time, so if you find yourself in this uncomfortable position, consult with an attorney.
- American Bar Association: Admissibility and Evidentiary Issues With Electronic Evidence (PDF)
- Brave, Weber & Mack: I am in a Custody Battle in California. My Ex Left an Awful and Damning Voicemail Message on My Home Answering Machine. Can I Use the Recording in Court as Evidence?
- Fox Rothschild: Be Careful What You Say – Emails, Text Messages, Voicemails and More…
- Cornell University Law School, Legal Information Institute: 18 U.S. Code § 2701 - Unlawful Access to Stored Communications
- Electronic Frontier Foundation: Can Police Read Text Messages Without a Warrant?
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.