hearsay evidence

Are Text Messages Hearsay – Exploring Admissibility in The Court

Updated on September 8, 2023

As digital communication continues to grow, the number of cases involving text messages as evidence is also on the rise. It’s estimated that in certain legal proceedings, digital evidence like text messages can constitute up to 40% of the evidence presented.

In today’s digital age, text messages have become an integral part of our daily communication. But when these messages find their way into the courtroom, their admissibility can be a subject of intense debate. The concept of hearsay, traditionally applied to verbal or written statements made outside the court, now faces new challenges in the context of text messages. As we navigate this legal landscape, questions arise:

  • Can text messages be considered hearsay?
  • How do courts determine their authenticity and relevance?
  • And what implications do these digital snippets hold for legal proceedings?

Key Takeaways

  • Definition of Hearsay: Hearsay refers to an out-of-court statement presented as evidence to prove the truth of the matter asserted. In the context of text messages, the question arises whether they can be considered hearsay or not.
  • Text Messages as Evidence: With the rise of digital communication, text messages have become a common form of evidence in legal proceedings. Their admissibility often hinges on the hearsay rule.
  • Exceptions to Hearsay: While text messages can be considered hearsay, there are exceptions that might allow them to be admitted as evidence. For instance, if they are used to show the state of mind or intent of the sender.
  • Relevance in Divorce Cases: Text messages can play a pivotal role in divorce cases, especially when they contain information about infidelity, financial matters, or other relevant issues. However, the question of whether “text messages between parties in divorce are hearsay” becomes crucial.
  • State-Specific Rules: Different states may have varying rules regarding the admissibility of text messages. For example, rules in California might differ from those in other states.
  • Importance of Context: When determining the admissibility of a text message, the context in which it was sent and received can be crucial. For instance, a message sent in jest might be interpreted differently than one sent in a serious context.
  • Authentication of Text Messages: Before a text message can be admitted as evidence, it often needs to be authenticated. This means proving that the message was indeed sent by the claimed sender and received by the intended recipient.
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How does Hearsay Play into the Era of Text Messaging?

With the ubiquitousness of smartphones, text messages have now become a preferred tool of communication for many. Due to the informal nature of text messages, many, if not most people fail to consider the potential evidentiary effect of a text message. As a general proposition, despite the informal usage of text messages, a text message can potentially still be evidence in the case, subject to the rules of hearsay, with further caveats.

In this post, we specifically discuss how the lack of response to a text message cannot qualify as an adoptive admission as an exception to the hearsay rule.

1. Hearsay evidence in Trial

The concept of “hearsay” as it pertains to trial is well known. As many people know, out of court statements offered for its truth are barred by the hearsay rule due to inherent trustworthiness and reliability concerns. However, there are many exceptions to this rule that would allow an otherwise inadmissible statement to be offered as evidence or for some other purpose in court. One major exception to the hearsay rule are admissions made by a party.

2. Admissions Made by a Party

Specifically, an admission for the purposes of the hearsay exceptions in any out of court statement or assertive conduct by a party to the action that is inconsistent with a position the party is taking at current proceeding. The statement itself does not necessarily need to have been against the party’s interest when it was made. Indeed, even a statement self-serving whenmade may be admissible as a party admission if contrary to the party’s present position at trial. (People v. Richards (1976) 17 Cal.3d 614, 617-618 (disapproved on other grounds by People v. Carbajal (1995) 10 Cal.4th 1114, 1126.)

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Case Study: People v. McDaniel and Text Message Admissions

Notably, an admission does not necessarily require an affirmative statement by the party taking the inconsistent position. Indeed, silence may be treated as an adoptive admission if, under the circumstances, a reasonable person would speak out to clarify or correct the statement of another were it untrue. (People v. Riel (2000) 22 Cal.4th 1153, 1189.) However, silence is not admissible as an adoptive admission if another reasonable explanation can be demonstrated. Indeed, in the recent case of People v. McDaniel (2019) 38 Cal.App.5th 986, 999 (“McDaniel”), the Court of Appeal held that failure to respond to a text message accusing defendant of committing a crime was not admissible as an adoptive admission.

In McDaniel, the prosecution attempted to use the defendant’s mother’s statement to show an adoptive admission by the defendant because the defendant did not text his mother back to deny her indirect accusation that he had committed several local robberies. The Court of Appeal rejected that theory. As the Court of Appeal explained, given the nature of text messaging, the fact that the defendant did not text his mother back was not sufficient to show he had adopted his mother’s statement:

Text messaging is different from in person and phone conversations in that text exchanges are not always instantaneous and do not necessarily occur in “real time.” Rather, text messages may not be read immediately upon receipt and the recipient may not timely respond to a text message for any number of reasons, such as distraction, interruption, or the press of business. Furthermore, people exchanging text messages can typically switch, relatively quickly and seamlessly, to other forms of communication, such as a phone call, social-media messaging, or an in-person discussion, depending on the circumstances. In short, in light of the distinctive nature of text messaging, the receipt of a text message does not automatically signify prompt knowledge of its contents by the recipient, and furthermore, the lack of a text response by the recipient does not preclude the possibility that the recipient responded by other means, such as a phone call.