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How to effectively utilize social media and text message evidence in a Texas divorce trial

So here you are, ready to begin your divorce trial. The past few months have been not all that great for you or your family but you've finally made it to the end. What happens over the next day or two will shape the immediate future for you and your kids. You want everything to be perfect. You've worked with your attorney to prepare for the trial. You think everything is in place just the way it needs to be.

Control the controllables. That’s what I tell clients regarding their divorce or child custody case. There is so much in a family law case that you have no direct control over, that to worry about everything associated with your case would be enough to drive you insane. You can’t control what has happened in the past. You can’t control the things that your opposing party or their attorney can do. You can’t control the judge or the judge’s innate biases for or against you. The only thing you can control is you, your attitude and the plan that you and your attorney develop.

Part of that plan should be working to make sure that all of the important evidence that you have collected has a good chance to be included in the record for your trial. Some of you reading this may not be aware, but not every piece of evidence- documents, testimony, etc.- will be considered by the judge. The other side can attempt to block their introduction by offering objections based on any number of grounds. Your attorney will be in charge of making and responding to objections (another part of the case you don't have much control over).

What I recommend that you and your attorney do before your case has even started is to think about how you are going to offer evidence into the record. I'm not telling you that your attorney needs to walk you through the mundane and procedural steps that require a Texas attorney to do to offer evidence into the record at a trial. That is probably more than you care to or need to know. However, what I am telling you is that you need to have an idea of how evidence is introduced, offered into the record and ultimately admitted or barred from entry into the record.

This is especially true when the evidence is either social media posts or text messages. Some objections can easily be offered by your opponent in a family law trial if you were to try and admit any of these kinds of evidence into the record. Judges like to know how credible and trustworthy evidence is before admitting it into the record. Print outs from a computer screen or screenshots from an old cell phone are not exactly the most trustworthy source of information. As a result, there are rules that you must follow and burdens you must bear to have that information introduced into the record of your trial.

Today’s blog post from the Law Office of Bryan Fagan will seek to show you just how you and your attorney will overcome objections and offer into evidence important pieces of information that can seriously help your case. Do not leave it all up to your attorney. You should be aware of what he or she will need to do in a trial to have this evidence help your case. This knowledge will allow you to better collect the information so less work has to be done by your attorney and their staff later on. This will reduce the amount of money you have to pay your attorney (less work for the attorney equals less money you have to pay) and will increase the chances that the information is included in the record of your trial. 

The most direct method of getting evidence into the record: through your testimony

If you obtained evidence for use in your trial right off of your social media webpage, the best way to have this information offered into the record is through your testimony. Remember- the judge wants to verify the authenticity, credibility, and trustworthiness of the evidence. Basically- does the exhibit you are offering to contain the information you are alleging that it does. There are a host of objections that can be made to a social media webpage but know that if you pull the information off your profile or front-page then you have a more than decent shot at having the judge consider the exhibit when your trial is done.

You will be asked whether or not you have a particular type of social media account (Facebook, Instagram, etc.). Next, you will be walked through very basic questions that might seem pointless at first, but remember that your attorney needs to show the judge that the information comes from a legitimate source that can be believed and is what you purport it to be. Having an active profile that only you have access to is a key part of this. If another person frequently logged into your account to post things that could ruin your opportunity to show that this information is legitimate, credible and authentic.

The next thing you would be asked to do is to take a look at the exhibit that you are offering into the record. It is likely to be a screenshot/print out of a photo or social media post pulled directly from your account. You will be asked if you recognize what was handed to you and how it is that you recognize it. Next, you will be asked to state what the photo or social media post is. As long as the material does not appear to be altered, your attorney will then ask the judge in your case to admit the exhibit into evidence.

A friend of yours may also be brought to the witness stand to attempt to get the social media post into the record. The questions your attorney would ask your friend would be largely the same as we're asked to you with slight alterations. The most significant would be that your attorney would ask questions to verify that your friend is a connection of yours on social media and that he or she was familiar with your social media profile. As long as he or she answers yes to those questions they will be asked about what the piece of evidence appears to be.

Offering text messages into the record during a family law trial

Again, the most straightforward method of offering text messages into the record would be through your testimony. The questioning would follow the following lines. You will be asked if you are familiar with the opposing party and if you communicate with him or her regularly. The methods by which you communicate with this person as well as whether or not you communicate by text messaging.

Assuming that you answer those questions in the affirmative, you will be asked to verify that you received a text message on a particular date from your opposing party. When a print out of the text message is handed to you, you will have an opportunity to identify what it is and specify how you know that it is a text message from your opposing party. Many times these print-outs will have your opposing party’s name or phone number at the top of the page, so this will be pretty simple to do. Once your attorney has walked you through all of these questions, he or she will then offer the exhibit into evidence. The opposing attorney will have an opportunity to offer an objection. The judge will rule on the objection and decide as to whether or not the exhibit will be part of the record.

How you and your attorney will authenticate a document

This is a common objection to evidence that is attempting to be admitted like screenshots of text messages or social media print outs. The judge needs to make sure that the evidence you are submitting is reasonably certain to be the evidence and information that you are asserting that it is. If the judge cannot be sure that what you are submitting is authentic, then you will be denied. 

The best way that I am aware of to have evidence admitted over an objection relating to its authenticity is to do so through the testimony of a person who has direct knowledge of the information. That is why I encourage clients to be able to come up to the witness stand and testify about these types of evidence. If your attorney agrees with me on this, you will be asked questions during your direct testimony to get evidence admitted.

Otherwise, you may have a tough time getting text messages and social media posts/photos included in the record. The reason I tell you that is because there is not much that is distinctive about text messages or social media posts. The text messages that you send probably look a lot like mine and vice versa. The contents, substance or characteristics of those text messages probably do not distinguish them from any other text messages that could have been submitted from any other persons.

How to show a judge that particular pieces of evidence are relevant

I bet that in your daily life when someone is trying to argue with you about something, that you have either thought or have directly told a person that a particular argument (and the evidence that argument contains) is irrelevant. Your position is that the evidence is so out of the left-field as to have little relation to what you are arguing about on that particular day. Since it is irrelevant it wouldn't factor into your decision making and maybe a distraction from the evidence that is relevant.

Evidence needs to be able to help the fact finder (in this case, the judge) be able to judge any particular fact’s existence in your case to either be more or less likely. For instance, if you are attempting to show that your opposing party is a bad or negligent parent, the judge would need to believe that a photo of him dangling your son over the balcony of a hotel room would make this assertion either more or less probable. 

Generally speaking, all relevant evidence is admissible and all irrelevant evidence is inadmissible. Some evidence may be excluded from the record, however, even though it is technically relevant. This is because the value of the evidence is outweighed by the danger that its introduction could be overly prejudicial, confusing or misleading. Also, if you have offered three text messages already showing that your ex-spouse has threatened to hit your child and you then attempt to offer a fourth, the judge may bar you from doing because the evidence is cumulative of other exhibits already entered into the record.

The bottom line: be prepared so you know how to help your attorney

A family law trial is not something where you want to kick up your feet and have your attorney do all the work for you. Yes, the reality of the situation is that he or she will be tasked with doing a majority of the heavy lifting when it comes to knowing the law and applying the law to help you. However, you can assist by preparing evidence in a way that your attorney does not have to lift as much weight to have it be admitted into the record.

If you have any questions about the content of today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week here in our office. These consultations are a great opportunity for you to ask questions and receive direct feedback about your particular circumstances. 

Our attorneys and staff put the interests and well-being of our clients at the forefront of our practice. We work in the family courts of southeast Texas and have achieved successes for our clients that we believe are unmatched. Thank you for your time and consideration. We hope you will join us tomorrow as we continue to discuss relevant topics within Texas family law. 

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