In the digital age, text-based communications are at the heart of many legal disputes. Whether it’s iMessage, SMS, or WhatsApp, these messages can provide critical evidence in civil litigation, including commercial vehicle crash cases. But not all messages are created equal in the eyes of the law. Their evidentiary value depends on a range of factors, from authentication and content to how they’re collected and presented in court.
Last week I put up a poll on LinkedIn:
Question:
What’s the evidentiary value of iMessage vs. SMS vs. WhatsApp messages?
Answers:
· Depends on authentication
· Content and attachments matter
· All can be admissible
· Chain of custody is key
This article explores four key considerations attorneys must understand when evaluating the evidentiary value of messages across these platforms.
1. Depends on Authentication and Context
The first and most fundamental question is whether the message can be authenticated. Courts require proof that a message is genuine and that it was sent or received by the parties claimed. Authentication can be straightforward if the message is extracted directly from a device using forensic tools, but it becomes more challenging with screenshots or forwarded messages.
Context is equally important. Was the device in the exclusive control of the alleged sender? Are there corroborating messages or responses that help confirm the sender’s identity? For example, a message sent during a critical moment in a commercial vehicle crash investigation may carry more weight if it aligns with other evidence, such as GPS data or witness statements.
Attorneys should be prepared to provide testimony, supporting records, or expert analysis to establish both the authenticity and the context of the messages. Without this foundation, even the most compelling message may be excluded or given little weight.
2. Content and Attachments Can Impact Relevance
The substance of a message—and any attachments it includes—can dramatically affect its relevance and impact in litigation. iMessage, SMS, and WhatsApp all support text, but iMessage and WhatsApp also allow for the exchange of photos, videos, voice notes, and documents. These attachments can provide crucial context, corroborate claims, or even introduce new evidence.
For example, a WhatsApp message with a timestamped photo of vehicle damage, or an iMessage thread containing a location pin, can be far more persuasive than a simple text. Conversely, SMS is limited to text and sometimes basic media, which may restrict its evidentiary value in cases where visual or audio evidence is key.
The relevance of a message is also shaped by its content. A casual conversation may be less important than a direct admission, a warning, or a real-time report of an incident. Attorneys should carefully review not just the text, but all attachments and embedded data, to determine what is most probative for their case.
3. All Can Be Admissible with Proper Foundation
Despite differences in features and capabilities, iMessage, SMS, and WhatsApp messages can all be admitted as evidence if the proper foundation is laid. This means demonstrating that the messages are authentic, relevant, and have not been altered.
Courts have accepted screenshots, printouts, and forensic extractions, provided there is supporting evidence such as testimony from the sender or recipient, device logs, or corroborating records. The key is to establish a clear link between the message and the parties involved, and to show that the message is complete and unaltered.
For example, a WhatsApp chat log might be introduced alongside testimony from both participants and expert analysis of the message headers. SMS messages can be supported by carrier records, and iMessages can be corroborated by device backups or extractions. The admissibility of these messages is less about the platform and more about the thoroughness of the evidentiary foundation.
4. Chain of Custody and Export Method Matter Most
How messages are collected, preserved, and presented is often as important as their content. Chain of custody refers to the documented process of handling evidence from the time it is collected until it is presented in court. Any break in this chain can raise questions about the integrity of the evidence.
The method used to export messages is also critical. Forensic tools that extract messages directly from a device and preserve metadata are generally preferred over screenshots or manual transcriptions, which are more susceptible to manipulation. Proper export methods can also capture deleted messages, attachments, and other relevant data.
For example, a forensic examiner might use specialized software to create a forensic image of a device’s storage, ensuring that all messages and metadata are preserved. This process is documented in a way that can be presented in court, showing that the evidence has not been altered.
Attorneys should always be prepared to explain and defend the chain of custody and export method used to collect message evidence. Failure to do so can result in exclusion or diminished weight of the evidence.
Tips for Attorneys: Maximizing the Value of Message Evidence
- Act Quickly: Preserve devices and accounts as soon as possible to prevent loss or alteration of evidence.
- Engage Forensic Experts: Use digital forensic professionals in all phases; preservation, protocol development, extraction, analysis, and reporting to ensure proper preservation of metadata and chain of custody.
- Document the Process: Keep detailed records of how evidence was collected, handled, and stored.
- Authenticate Thoroughly: Be prepared to authenticate messages through testimony, metadata, and corroborating evidence.
- Review All Content: Examine not just the text, but all attachments and embedded data for relevance.
- Anticipate Challenges: Be ready to address questions about authenticity, completeness, and context.
- Understand Platform Differences: Know the capabilities and limitations of each platform, including what types of content and metadata are available.
- Respect Privacy Laws: Be mindful of privacy and data protection laws when collecting and presenting message evidence, especially in cross-border cases.
Conclusion
The evidentiary value of iMessage, SMS, and WhatsApp
messages is shaped by a complex interplay of authentication, content,
admissibility standards, and the integrity of the collection process. No single
platform is inherently superior in all circumstances; rather, the value of
message evidence depends on how it is handled from the moment of creation to
its presentation in court.
Attorneys and investigators must approach digital message
evidence with a strategic mindset, leveraging forensic expertise, thorough
documentation, and a deep understanding of both technology and legal standards.
By doing so, they can maximize the impact of message evidence and ensure that
it withstands scrutiny in the courtroom.
In the end, the best evidence is not just what is said in a
message, but how well it can be proven to be authentic, complete, and relevant
to the case at hand.
If you have any questions please contact me at
ben@braveinvestigations.com