The Increased Use of Electronic Messaging Evidence in Divorce Proceedings

It is crucial for family law attorneys to keep up with societal changes in communication. As technology advances, so does the type and forms of messages we as society are able to send and receive. Parents now communicate through text messages, emails, Facebook messages, Snapchats, and a plethora of other forms of electronic communication. It is therefore crucial that your attorney understand and be on top of their knowledge of these new forms of social media and their admissibility in the courtroom.

Attorney Van Smith and the other attorneys at Smith Strong, PLC have this requisite knowledge of advancements in technology. The entire company is run on a cloud-based data system, with each employee having their own electronic workstation allowing work to be done at anytime, anywhere. The attorneys have and actively use each form of social media, allowing them to understand how messaging on each platform works.

The attorneys at Smith Strong, PLC know how to get a text message, e-mail, or message from social media admitted into evidence in a divorce proceeding in order to help your case.

Proper Foundation

As is the case with any piece of evidence, a proper foundation for admissibility must be laid. This means that a background and context must be provided for your evidence to be admitted. The evidence must also be relevant to the case and authenticated.

Authentication and Electronic Messages

Authentication is usually done by a witness giving testimony identifying what the document is or calling a custodian of record who can testify to the accuracy of the  contents of the document. However, issues with authentication arise with electronic messages, especially in divorce proceedings.

Circumstantial Evidence is Necessary for Authenticating Electronic Messages

Circumstantial evidence is necessary for authenticating electronic messages. There must be 1) a printed out version of the messages along with 2) a statement of who the author or sender of the message was.

The first step is simple, as there is a low threshold for providing a printed copy. The second step, however, is more complicated. Identifying who the sender of the message was requires testimony describing distinctive characteristics such as appearance, contents, substance, or a domain. It would also be helpful to have a witness to testify as to the person writing the message.

Attorney Van Smith can help guide you through the process of determining how to authenticate your electronic messages to help your case in a divorce proceeding.

Special thanks to co-author and fellow researcher, Hayden-Anne Breedlove for her contribution with this article. Hayden-Anne Breedlove anticipates graduating from the University of Richmond School of Law in May of 2019.

H. Van Smith
Trusted Virginia Family Law Attorney Serving Richmond to Williamsburg