When digital conversations become courtroom evidence
So much communication happens electronically, and in divorces and other family law disputes, those messages can contain valuable information. Text messages and emails can establish timelines of events, give the court insight into relationships, and help to prove key aspects of a divorce case. So, can they be used as evidence?
The short answer is yes. Digital communications, just like physical documents, can be used as evidence in court, including family court. However, whether any particular email or text message can be offered as evidence is complicated. Here’s what you need to know.
How you can obtain texts and emails to be used in court
There are two main ways to acquire text messages, emails, and other documents for use in court. First, you can use anything you already have access to, such as emails stored in your personal email account or anything saved on your personal devices. Likewise, you can use anything that has been voluntarily disclosed to you.
The second method is the formal discovery process once court proceedings have been initiated. Your attorney can file requests for production to force the opposing party to produce documents that contain information relevant to the case. However, these requests can be challenged, particularly when they are overly broad—for example, requesting every email sent or received for the last 10 years would likely be considered too broad. An experienced lawyer can craft your discovery requests to obtain the information you actually need and defend against any overly broad or otherwise inappropriate requests from the other side.
What you can’t do is try to break into your spouse’s devices or accounts on your own. You also can’t record conversations without permission; Illinois is an all-party consent state, and taking illegal recordings can lead to serious consequences.
When texts and emails are and aren’t admissible in family court
Before an email or text message can be offered to prove your case, the court must make a decision as to whether to admit it into evidence. The rules of evidence are complex, but in general, there are three big considerations when admitting digital communications.
First, the party offering the evidence must show that it is authentic; that is, that the message was really sent by the person you claim sent it, and that it hasn’t been altered. Sometimes, this is straightforward—an original email from a known email address, for example—but it can get tricky in cases involving alternate email addresses, unknown numbers, or anonymous social media accounts. Screenshots can be used, but you have to prove that they accurately reflect the original message and have not been altered.
The second step is establishing relevance; that is, showing that the evidence matters to something at issue in the case. For example, in a child custody dispute, messages that have some bearing on the parent’s fitness or the stability of the home are relevant, but messages that don’t help to establish the best interests of the child are not relevant. Family court is not the place to display every single message that might embarrass the other parent if it isn’t relevant to the matter the court actually must decide.
Finally, there is the hearsay rule. This isn’t an issue if you are offering messages that were sent by the opposing party (that is, your spouse or ex-spouse), but messages sent by third parties, such as friends, family members, or coworkers, are generally considered hearsay. That means they are not admissible in court unless an exception applies—but the hearsay rule has many exceptions, so only an experienced family law attorney can assess whether any given piece of evidence is likely to get in.
Talk to an experienced family law attorney today
Taking this all into account, there are two big takeaways. First, be careful what you put in writing. Any email or text message can potentially be used against you. Before you send that angry message, think about whether it’s something you’d be comfortable putting in front of a judge.
Second, experienced legal counsel makes a big difference. The discovery rules and evidence rules are complicated, and the way those rules are applied in family court can be quirky and unintuitive. An experienced family law attorney who knows how to navigate the system can put you in the best position to succeed.
If you are dealing with a divorce or other family law matter in southwest Illinois, contact Courtney Clark Law, P.C. to find out how we can help.
"Charles Courtney delivered outstanding representation. He took a complicated, emotionally charged situation and brought clarity, strategy, and control to every step of the process. His guidance, preparation, and courtroom presence made a major difference and helped deliver the outcome my family needed. I would recommend him without hesitation to anyone dealing with a challenging family law case." – G.C., ⭐⭐⭐⭐⭐