California Family Law: Can I Submit Texts and Emails as Evidence?
The general rule is that you cannot use texts and emails as evidence unless the opposing party consents. Nevertheless, because there are numerous exceptions to the general rule, texts and email are commonly used as evidence at trials and in depositions. The point is that, in order to use them as evidence, you must rely on an exception to the general rule against hearsay.
Hearsay
Generally, texts and emails are excluded from evidence in court to the extent that they are hearsay – that is, they contain statements made by someone other than the person who is trying to submit them, and the evidence is used to prove the truth of the statement.
As an example, suppose you attempt to submit an email conversation between you and your spouse in which your spouse states, “I am going to come to your house and beat you to a pulp.” Technically, this is hearsay if it is used to prove that your spouse intended to beat you. It is not hearsay, however, if it is used to prove that you reasonably feared that he would beat you.
The “Statement against Interest” Exception
The “statement against interest” exception is one of many exceptions to the hearsay rule that allows a text or an email to be used as evidence, despite the fact that it is hearsay. A statement against interest is a statement that causes harm or potential harm to the speaker. ”I was drunk the afternoon I picked Julie up from kindergarten,” is a statement against interest, for example, because it is a confession of a crime. Such a text would likely be admitted into evidence.
Third-Party Texts
You might decide that you need text or email evidence that comes from a third party (your spouse’s new girlfriend in a divorce case, for example). Because a third party is not a party to your case, however, it is likely to be more difficult to admit a text conversation between your spouse and his girlfriend than a text conversation between you and your spouse. It might be possible, however, to subpoena your spouse’s girlfriend as a witness.
Preparing for a Dispute
If you are involved in a pending case, or if you expect a case to arise, make sure to save all relevant texts and emails so that you can use them as evidence later. Don’t depend on your cell phone provider to save these records for you. More than anything else, remember that the other party (your spouse, for example) might seek to admit statements that you made by text or email as evidence against you. Be careful what you write so that it cannot be easily misconstrued.
Get Started Now
If you are considering the possibility of joint custody, you are going to need to make an informed decision rather than a hasty one. To explore your options, call 909.204.7920 directly, fill out our online contact form, or stop by one of our offices in Rancho Cucamonga, Riverside, and Los Angeles.
