With the rise of digital technology, text messages are an increasingly popular way to communicate. Texting creates a written record of your communications, and, if you discuss illegal activity, these may be used against you in court. The Supreme Court of the United States and the Court of Appeals of Virginia have both ruled that your text messages may be used as evidence in certain circumstances, but law enforcement and the attorneys involved must follow specific procedures to legally obtain your text messages and submit them as evidence.

Riley v. California

In Riley v. California, the Supreme Court considered if law enforcement can use evidence found in your cell phone against you if they find the information during a search without a warrant. In a unanimous decision, the Court ruled that searching a suspect's cell phone without a warrant violates their Fourth Amendment protection from unreasonable searches and seizures. Law enforcement must get a warrant to search your cell phone. If they do not get a warrant first, your defense attorney may be able to use this information to have your charges reduced or dismissed.

If law enforcement obtains a warrant to search your cell phone, any text messages you sent or received may be used against you as evidence.

Dalton v. Commonwealth

When the defense or the prosecution wishes to submit writings as evidence in court, they should submit the original writing rather than a copy. The Virginia Rules of Evidence defines writings as “letters, words, numbers, or their equivalent, set down by handwriting, typewriting, printing, photographing, magnetic impulse, mechanical or electrical recording, or other form of data compilation or preservation.” Text messages are a form of writing.

In Dalton v. Commonwealth, the court declined to specify what makes a text message "original." If the original is lost or destroyed, unobtainable, or in the possession of the opponent, the Court may accept a copy.  Judges have allowed attorneys to submit text messages from the Cloud, screenshots of text messages, printouts of texts from your cell phone, and printouts of texts from your cell phone provider as evidence.

When obtaining text messages from your cell phone provider, the attorney must submit a subpoena to the company. Neither side can alter these text messages, so they are close to an "original."

Although some courts allow screen shots, this may change since these can be digitally altered.

Do You Need a Criminal Defense Attorney in Virginia?

If you have been charged with a crime in Virginia or Washington, D.C., you need an experienced criminal defense attorney from S.L. England, PLLC. When the prosecution submits your text messages as evidence against you, our attorneys will look at all aspects of your case and determine if your text messages were obtained through an unlawful search and seizure or if screenshots have been digitally altered. Our attorneys understand evolving technology and what constitutes an original writing. We are prepared to fight for you. Call us today at (202) 572-1020 or contact us online.