Your typical electron flies around at nearly the speed of light, 300,000 kilometers per second (186,000 miles per second). All those text messages you and your divorcing spouse are sending back and forth? Just gatherings of electrons, zipping along the internet. How do you capture something so ephemeral?
Can Text Messages Be Used As Evidence?
Let’s clear this up immediately: text messages, videos, and audio recordings made with the other party’s permission are all admissible evidence in Virginia civil and criminal cases. If the evidence was gathered legally, the evidence stands.
You cannot, under any circumstances, attempt to retrieve information from any device you don’t own (smartphone, computer, tablet, laptop) that has any safeguards such as passwords or key codes. Even if you know her password is the dog’s name and birthday, you cannot sneak your soon-to-be ex-wife’s iPhone 12 from her nightstand, punch in “Waddles 2017,” and resend her messages to your device.
Similarly, Mr. Phelps, you cannot secretly record her either by video or audio without a court order. You break not only Virginia wiretapping laws, but federal ones as well, when you try your little “Mission: Impossible” move.
On the other hand, anything she sends you is yours; you can save and document every text, email, voicemail, and angry video. She cannot reasonably claim her own voicemail to you was made without her knowledge.
By the Numbers
Any evidence you save for any legal proceeding needs to come bundled with as much documentation as you can get. Whether a piece of snail mail, email, or text, having the item’s provenance, or history, strengthens its value as evidence.
Experts at Decipher Tools recommend that every text message should have these numerical designations, at a minimum:
- The date and time of the message
- The real contact information for the other party or parties in the text message conversation
For Short Message Service (SMS), the contact information is a telephone number. For Multimedia Message Service (MMS) and iMessages, the contact information can be either a telephone number or an email address.
How To Save Phone & Text Messages
Various apps and programs are available for many aspects of separation and divorce, including capturing and preserving text messages and multimedia pieces such as photographs, audio recordings made with the other party’s permission, and video.
SMS Backup+, for example, is free from Google Play and offers users the ability to automatically back up a device’s SMS, MMS and call history, with separate labels in Gmail and the user’s Google Calendar.
Other free and low-cost products and apps that let you preserve evidence include:
- Decipher Text Message — Saves and prints text messages to be used in court; it saves messages with a time/date stamp, saves data directly to your computer, and can recover deleted text messages and iMessages
- iPhone SMS Export — A Windows and Apple app you can use to copy messages from an iPhone directly to a PC, and convert the SMS database to Excel, text, CSV or HTML
- PhoneView — Store and archive messages, notes, contacts, voicemails, and call history
- SMS Backup, Print & Restore — Convert SMS/MMS text messages to PDF, CSV, HTML or JPG format; send them to your email account or print them
Even before taking time and possibly spending money on an app or program, you can take screenshots of incoming messages on either your iPhone or Android device. Suppose your unhappy, departing spouse sends an angry round of accusatory messages, and there you are in the middle of Virginia Beach’s Lynnhaven Mall with your three small kids in tow. You want to preserve the content quickly.
To take a screenshot on an iPhone:
- Press the “Home” and “Sleep/Wake” button to capture what is on your iPhone screen
Android devices differ by manufacturer, but you can start by trying these two things:
- Try pressing down the “sleep / wake” button and the “volume down” button at the same time; a screen flash means you did it right!
- For Android smartphones with a “home” button, try holding down the home button and the power button simultaneously until you see the screen flash
Providing Evidence to Your Attorney
No matter what you gather, do not make the mistake of parading into a Virginia courtroom mimicking the folks you see on court television shows, armed with shoeboxes of loose papers.
As camera-ready as those stacks of papers may seem, they are evidence you need to turn over to your attorney. Each item can become cataloged and submitted into evidence, but only if your attorney knows about it.
With the pieces of paper carefully curated in chronological order, your attorney can strengthen your case while casting your worthy opponent (your spouse) in the worst possible light.
Think that is too harsh? Consider the many famous divorces made easier by guilty people sending guilt-glazed texts to people they should not have. Tiger Woods springs to mind, as does former Nevada governor Jim Gibbons, and former Detroit mayor Kwame Kilpatrick and his dalliance with Christine Beatty.
For experienced, knowledgeable handling of your sensitive separation or divorce, turn to The Firm For Men. Contact us online or telephone our Virginia Beach office at (757) 383-9184. We can help you decide what to preserve, how to preserve it, and how to present it as evidence.