The saying, “Anything you say can be used against in a court of law,” given when anyone is arrested (as part of the Miranda warnings) is also good advice for any texts you send. Any texts that you write, even if you try to delete them, before or after an arrest may also be used against you in a court of law. The government must have authority to obtain the texts, the texts must be authentic, and the texts must be relevant to the charges filed.

Time Magazine recently discussed how your text messages could back to haunt you. Text messages have played a critical part in the January 6 House Congressional hearings. A government watchdog recently disclosed that the US Secret Service deleted important text messages that relate to the events of January 6. Text messages have also played a critical role in several high-profile cases, such as the Amber Heard/Johnny Depp defamation trial.

Text messages are similar to social media posts in that they are digital communications. Digital communications are fairly easy to trace, provided law enforcement has the authority to search for them – a very important question in criminal and civil cases. Unlike verbal conversations, texts can be retrieved word for word and exclamation point by exclamation point.

Generally, once a text message is introduced into evidence, the evidence can be used to prove the charges against you, a motive, your state of mind, and your intent. They can also be used to prove your innocence. It all depends on what the texts say and their context. Just demonstrating intent can be the difference between a conviction and an acquittal.

Time states that with the recent ruling overturning Roe v. Wade, text messages may even be used to show a woman sought to end her pregnancy – which may violate various state laws.

Can my text messages be retrieved?

You should know that most cellular service providers provide a record of your texts – even when you think you’ve deleted them on your own phone. Providers keep a record of both the texts you send and the texts you receive. The record-keeping is generally for a short period of time (often, about 30 days).

Obtaining text messages, according to Time, becomes more complicated when the text messages are encrypted through services such as iMessage and WhatsApp. If you use a cloud-based backup for these messaging apps, the content can still be accessed using special “cloud extraction technologies.”

Are text messages admissible in court?

Our seasoned Crofton and Bowie criminal defense lawyer understands how to contest the admissibility of evidence before and during trial. We work to show the text was not authorized, is not authentic or reliable, and that it is not relevant or is unduly prejudicial. Generally, evidence is relevant if it helps show where you were at the time a crime was committed or helps show one or more of the elements of the offense. Many text messages are not relevant.

There are several key factors a judge will review before deciding whether text messages can be admitted into evidence.

• Authority to obtain the messages. Generally, in criminal cases, law enforcement must obtain a warrant to search through a defendant’s text records. The police or prosecutor must show that there is probable cause to believe that a crime has been committed and that the phone texts are relevant to determining a defendant’s involvement in a crime. In civil cases, an attorney must obtain a court order or a subpoena.
• Obtaining text messages is just the first step in introducing the text messages into evidence. The law enforcement official or lawyer must also authenticate the text by showing that the text was actually written and sent by the person they claim sent it. The American Bar Association states that witness testimony and credible circumstantial evidence such as “screen names, monikers, emojis, emoticons, the sender’s phone number, references to details only the sender and a small set number of people would know” are indicators that the texts are credible.
• Text messages by people other than the defendant may be inadmissible because text messages are “hearsay.” Hearsay is an extra-judicial statement offered into evidence to prove the truth of the evidence in question. Generally, statements by witnesses that are spoken out of court are not admissible because the defense cannot question the person who made the statement. Maryland courts prioritize statements by witnesses who swear to tell the truth in court. For text messages by anyone who is not in the courtroom to be admissible, the statement must qualify as an approved hearsay exception.

The court, before deciding if the evidence is admissible, will likely review whether the text message was deleted or edited by the sender. The court will also review whether the contact information associated with the message matched the actual contact information of the defendant or the sender.

The best course of action for everyone who uses text messaging services and apps is to expect that their messages are not private – that all messages (the messages you send and the messages you receive) may be fair game for law enforcement.

At Carey Law Office, our Maryland criminal attorney has been fighting for defendants for 40 years. A key part of most criminal cases is when evidence should be excluded because it was illegally obtained, is not verifiable, is not relevant, is hearsay, or for other reasons. The difference between just one statement, one text message, can mean the difference between your freedom and a conviction.

If you’ve been charged with a criminal offense in Bowie, Crofton, or Calvert County, you need an aggressive skilled criminal defense lawyer on your side. Call our offices or use our contact form to schedule a consultation. We’re dedicated to helping defendants obtain their freedom and preserve their reputation.