How to present text messages as evidence in the Family Court

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In the event of a family legal dispute, whether it be in the Australian Family Law Courts or other State-based jurisdictions, it may be critical to present text messages to show that they were sent, received, or read at a particular time. Evidence from texts can offer indisputable proof of prior communications, and are often sought during discovery.

But how is it best to present these electronic messages as evidence to the Court?

For your attention: Reincubate is not a Law Firm, we are Data Specialists

We’re not lawyers — instead, we only make the world’s best tool for getting data from iPhones and iPads — and can’t give legal advice. Depending on which part of the world you’re in, the forum you plan to use the print-outs in, and potentially even the judge or arbitrator, the standards of admissibility may differ. Take advice where it’s appropriate.

What’s important when presenting text messages?

Standards of acceptability vary around the world, and even by state to state.

In Australia there has been a lot of effort with the Uniform Evidence Acts to try to harmonise the different state rules on evidence, particularly when it comes to modern forms of communication. When it comes to the Family Law Courts of Australia, standards are increasingly being formalised, but unfortunately there is still considerable variation, and as such, it’s important to get it right.

Common-sense presentation of messages as evidence suggests that you need to make sure you have the following:

• A clear record of time and dates in an unambiguous format, with information on which timezone the messages were in, and whether daylight saving time affects some or all of the timestamps
• The date and time the text was received and read, if available (although many messaging systems don’t preserve this data, see below)
• Accurate representations of attachments and special characters, such as emoji, drawings, locations and memoji‘s.
• Clear details of the message’s sender and or recipient(s), not just an alias
• Presented in a tamper-proof way that is hard to alter or fake
• In some state jurisdictions, you may need to have the process carried out by an expert or comply with some form of certification process (e.g a certificate under Section 95 of the Evidence Act 1977 in Queensland)

You might need advice

This article and the techniques in it, can apply to anyone involved in a dispute or the arbitration of a dispute, whether they are a divorcing or separating couple in dispute over child custody or property division, consumers in a dispute with a company, someone who may have been a victim of a crime, or a lawyer, legal official, and even a mediator. But this information IS NOT legal advice, so please consult your solicitor before finalising your submission to Court.

How to prove a message was read — or received

Proving whether a message was received can be difficult, depending on the messaging system being used. SMS systems weren’t designed for effectively tracking whether a message was delivered or not, and the “read receipt” mechanism relies on both the sender and the receiver opting in ahead of time.

Seeing these weaknesses in the SMS network, both Apple and Google have built their own extensions to delivery and sending tracking. Third-party apps which handle messages — such as WhatsApp and Facebook Messenger — have also built their own tracking mechanisms.

Options for preserving a phone’s message history

Let’s take a look at the best ways to preserve text messages for use as proof.

Using screenshots from a phone

The simplest approach is to take a screenshot or photograph of your device displaying the texts. This is pretty simple: on an iPhone you’d hold down the home button and tap the power button, or on an iPhone without a home button you’d hold “volume up” and tap the power button. That screenshot can then be printed or emailed.

Screenshots however are not suitable as robust forms of evidence. They have many problems:

• They can be easily faked. A screenshot is just a picture: anyone can alter a picture and put some text on it.
• It may take many screenshots to adequately show a complete messaging history, and there’s no clarity as to whether there are gaps between those screenshots.
• Messaging apps don’t show explicit timezone or daylight saving (DST) information.
• Messaging apps tend to obscure dates. Your phone might say a message was sent “yesterday”. That’s not helpful if you print it out and show it to someone a week later!
• Messaging apps tend to group messages together. If you send several iMessages close together, your iPhone will only show you when the first one was sent.

Showing exact message times in iOS Messages

If you swipe right and hold on an iPhone messages screen, you’ll see it shows message times. This is handy, but not enough, as it’s still only a 12-hour format, and without a date.

By way of example, here’s a screenshot simple message thread from an iPhone:

A printable screenshot of messages on iOS

You can see “Claudia” replied to a message. But what number did she reply from? And when did she reply? Was the message sent at 12:50 am on Saturday, or at 12:50 pm? Is that in daylight saving hours, in a local time zone, or is it in UTC? None of these questions are answered by that screenshot — it only raises more questions.

Using a phone or messaging app to print messages directly

As well as being ineffective, it’s surprisingly difficult to print messages directly from most phones. For instance, an iPhone can’t do it. If you pair your iPhone with your Mac through your iCloud account and let them sync messages, you’ll be able to see your SMS and iMessage history in the Mac’s Messages app. You can read how to use Messages here, directly from Apple.

Saving data from the Messages app is less effective than using a screenshot from an iPhone or iPad: it has all of the same drawbacks that screenshots have — and more.

Here’s the same question thread from above, but shown on a Mac’s Messages app this time:

A printable screenshot of messages on macOS

This report shows many of the same problems. 12:50 am or pm? Which timezone? When did Claudia reply?

Different message types aren’t indicated. For instance, your phone will show the difference between SMS, MMS and iMessage by using different colours, but the Messages app will show them all as being grey, and won’t always include every SMS message in a text conversation.

Printing data from Messages introduces another problem when crossing international borders: the date is shown as “29/12/2018”. If that date was shown as “5/12/2018”, it wouldn’t be possible to tell whether it was an Australian (5th December) or US format (12th May). Most American users would assume the message was seven months older than it appeared to be. An unambiguous format to use would be “2018-12-29”.

There’s another, more obvious problem. The sent message has a red exclamation mark and “Not delivered” written next to it. This is obviously not the case: after all, Claudia replied. But that’s what the Messages data tells us. It’s completely incorrect, would be highly misleading as evidence, and points to the real truth that neither method has shown: I sent two messages, the first of which failed to send, and the second of which works. Knowing this raises more questions.

Using iPhone Backup Extractor to get an accurate, forensic report of text messages

Back in 2008, I lost my phone’s data and needed to get it back. That led to me building iPhone Backup Extractor, which is the gold standard of recovering iPhone data.

Apple’s iTunes software is free to all users, and it can be used to quickly create a forensically sound archive of an iPhone’s contents. iPhone Backup Extractor can then — with a single click — generate a fully accurate report of message histories from an iPhone or iPad. Not only that, but it supports a wide range of additional messaging apps, such as WhatsApp, can recover deleted messages better than specialist forensics tools, and has a free version available to generate reports from threads with four or fewer messages.

iPhone Backup Extractor has been used in legal proceedings and disputes around the world. The FBI? District Attorneys? Cybercrime Centres and elite anti-corruption police? They’ve all licensed our software, and we’ve even been endorsed by the Queen of England for our technology.

Saving your text message history in a portable, printable format is easy with iPhone Backup Extractor. Download and run it. Open the “Preferences” dialog and make sure “Forensics mode” is checked. It’ll show you a summary of the number of messages you have in each of your messaging apps. If you then click the messaging app’s icon, iPhone Backup Extractor will generate a PDF of your message histories — with deleted messages included — in a clear, incontrovertible format.

Not only that, but our support team will do their best to help you through the process, and even jump on a screen-share with you to guide you through it if you get stuck.

What about Messages in iCloud, is that helpful?

No, it’s not. It’s actually unhelpful from a forensics perspective. First of all, Messages in iCloud will remove older messages from your device, meaning you’ll need to look at several different services to analyse your message history. It also means that your historic messages aren’t preserved: they’re getting archived and moved away to a different service over time.

Ideally, you want to be able to recover all of your messages from the device itself, and not a cloud service, without having to download the messages back to your phone.

Messages in iCloud adds a further complication, in that it may lead to larger message attachments being archived from your device and stored in the cloud.

Learning more about printing text messages and the law

As we stressed earlier: Reincubate isn’t a law firm, and we can’t give legal advice. You’d need to see a lawyer for that. There are a few resources around online that can be quite helpful for picking up a bit of background and helping you ask the right questions, however.

If you’re in a dispute, both parties should be aware that wiping a phone or deleting texts ahead of a legal hearing could lead to a felony charge in the US, and could cause similar troubles in Australia and the UK.

• “Can a text message conversation be used as evidence in a court of law” — Quora, via a number of US lawyers
• “Beware of fake text message evidence” — Dallas Divorce Law Blog, via O’Neil Wysocki Family Law
• “How to prove who sent a text message” — Avvo legal directory, via an MA litigation lawyer

If you get stuck or need assistance with extracting and printing your texts, please reach out to our support team. We’ll be happy to help.

Article Courtesy of Reincubate: How to print text messages for use as evidence

Other Family Law Express articles on electronic evidence and the law

• Can your SMS Text Messages be used as Evidence in the Family Court?
• Audio Recordings as Evidence in Family Court Proceedings
• 8 Tips On Admitting Audio Recordings In Family Law Hearings
• Secret recordings flooding Family Court trials
• Secret Phone Recordings Justified to Protect a “Legitimate Lawful Interest”
• Think before you post! Divorce & and social media don’t mix in Australia
• New Electronic Recording Laws Could Impact Family Law Disputes
• ‘Sexting’ can now lead to Jail in Victoria
• Dirty texts leads to Jail for Sydney pool cleaner
• Sickening insults via text are latest battleground for warring parents

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Aidan Fitzpatrick

Founder & CEO @reincubate at Reincubate

Founder & CEO @reincubate. Entrepreneur, investor. Helping people get more from Apple devices and data. Values come first.

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• How to present text messages as evidence in the Family Court - May 30, 2020