If you followed the news today, you know about the guilty verdict in the texting suicide case taking place in the Massachusetts Juvenile Court. In a well reasoned oral decision, Judge Lawrence Moniz found the defendant, Michelle Carter, guilty of involuntary manslaughter through her numerous text messages urging her boyfriend to kill himself. This case earned national attention as it concerned sensitive topics of teen bullying, suicide, and electronic communications. Here, I want to focus on another important aspect of this case: the growing use of text messages as evidence.
Text messages, like most areas of technology, have changed a great deal over the past decade. I remember when text messages were more of a novelty than an accepted means of communication. Now, it is completely acceptable to use text messages to share important information. This is quite a change from years ago, when many of us relied more on email and phone conversations to communicate.
The texting suicide case shows an important implication of text messages as a means of communication: these messages last forever. Unlike a phone call, which is rarely recorded, text messages often remain in a cell phone or in “the cloud” permanently. This has enormous implications, as the defendant in this criminal case learned the hard way. If this defendant had urged her boyfriend to kill himself over a phone call, it is doubtful the Commonwealth of Massachusetts could ever have obtained the evidence needed to convict her. This is an important lesson from this case: text messages as evidence have powerful consequences in legal matters.
A simple lesson should always apply to using text messages: if you text a message, be prepared for it being presented as evidence if a legal matter ever arises. This is not the first (and certainly will not be the last) time that text messages are the basis of a legal matter. Last year, the Massachusetts Land Court ruled that text messages could constitute a legally binding real estate contract, emphasizing how courts are adopting to electronic communications in civil and criminal cases.
In my practice, I take advantage of text messages as evidence. Such messages are extremely credible and persuasive in presenting facts to a judge or jury. However, text messages are worthless if these communications are not preserved and, most importantly, in a form available to present to a court. You would be surprised at how many people are prepared to simply hold up their cell phone to show a text message to a judge or jury! That approach doesn’t work; a court requires such evidence to be presented in a manner that can be part of a permanent record.
As an evolving area of the law, it is not completely clear on the best way to present text messages as evidence. Most smartphones have apps that allow a user to turn text messages into PDF files, which can be printed and introduced as evidence. This approach appears to be generally allowed by courts in accepting such messages into evidence. For anyone with a text message that may be relevant to a legal matter, I recommend using such an app, as well as keeping the original text message on your phone and making a backup copy. Like any piece of evidence, if it is lost, it isn’t much help to you.