Virginia’s laws of evidence are described and organized in great detail in the Rules of Supreme Court of Virginia (616 pages and no pictures!). Thumb through to page 95 and you get to the Good Part, the Virginia Rules of Evidence, which continue along to page 175, a tedious and tiresome 80 pages. Clearly, if the ancients wished to hide the secrets to eternal youth from prying eyes, they would have done so within the pages of Virginia’s Rules of Evidence.
Virginia Rules of Evidence
As a public service, we have put on a safety harness and dived deep into the seemingly impenetrable pages of the Rules to make certain the general public knows what’s what with our modern technology (including text messages) and family law.
We need to begin on page 166, which you no doubt knew to be Article X, Rule 2:1001, by defining “writings,” which you may be surprised to learn needs a definition at all. According to Article X Rule 2:1001 “writings” (they need quotation marks, apparently):
“consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation or preservation.”
A text on a smartphone, then, is an example of “writings.” How can texts be “writings,” you ask? They are electronic recordings that are also data preservation, because what you write on a smartphone is saved by your cell phone carrier.
But what of case law, you ask? We offer up Darius Oneil DALTON v. COMMONWEALTH of Virginia, which in 2015 set out that text messages are “writings,” with the full power granted unto them by those quotation marks. This means the text messages you and your spouse or ex-spouse exchange about child custody, parenting time, divorce, adultery or any other family law issue can be used as admissible evidence in a family law court.
We also wish to note for the record that the Dalton v. Commonwealth case included extensive mention of a character known as “Streetz,” also with quotation marks. Let the record further show that we are glad so serious a law opinion is permanently peppered throughout the “writings” with “Streetz.”
The Best Type of Evidence
The Supreme Court of Virginia wants original evidence as much as possible, as defined again by Article X Rule 2:1001:
“Original. An “original” of a writing is the writing itself or any other writing intended to have the same effect by a person executing or issuing it.”
Lacking the original, the court will accept other evidence branching from that original, such as a screenshot of a now-deleted text, though Dalton v. Commonwealth did not actually rule on the screenshots, acknowledging their admission to be a “harmless error” as substitutes for the original texts.
When will the Court accept copies of “writings,” you ask? Conditions for accepting substitutes for original “writings” are found in Article X, Best Evidence, Rule 2:1004. The Court will take other versions of an original if:
- Originals lost or destroyed; or
- Original not obtainable; or
- Original in possession of opponent; or
- The writing is not closely related to a controlling issue
One caveat: Intentionally destroying evidence such as “writings” of texts, letters, notes, emails and the like violates this Rule. This means never erasing text messages!
An “original” of “writings” need not be your actual cell phone produced in court, however. The printouts of texts, either by you or by your cell phone company, are also “originals.”
Can Text Messages Be Subpoenaed?
Your attorney can subpoena the relevant text messages from your cell phone company. In many ways this is the preferred method, though somewhat involved. It ensures a clear chain of evidence, since neither you nor your spouse (or ex-spouse) could interfere with that retrieval done by the third party (the phone company).
This means, of course, preserving the evidence as much as possible. It also means you are under a spotlight. Be cautious with how you respond to your spouse’s texts, realizing they can be used as evidence for either side in any subsequent legal action. Avoid getting into heated, angry message wars.
An easy method to self-regulate is to envision yourself reading aloud your texts from the witness stand in a Virginia court. How would you sound in that atmosphere, reading what you said to your spouse or ex-spouse?
Stolen Evidence?
While texts are admissible, you cannot access your ex-wife’s or wife’s texts to other people on her device (phone, tablet, laptop, etc.) and try to use them as evidence. That is a violation of federal and state wiretapping laws.
The best path forward in using electronic communications to bolster your case is to consult with your family law attorney.
With your telephone call to 757-383-9184, not a text, you can reach Virginia’s premier family law firm working to uphold the rights of Virginia’s men. You may also reach us online or, to avoid smartphones altogether, you can stop in at our Virginia Beach office. We handle all aspects of family law, including child custody, spousal abuse charges, and more.
