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Text message disclaimer?

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mollym.sequoia@

Junior Member
What is the name of your state? California

Is there a disclaimer I can add to my text messages to prevent them from being used against me in court? I know that the text message may be inadmissible if its not clear who sent it, so maybe something like "Due to the uncertainty behind the sender of this text message, this text can not be used as evidence...." or something along those lines (but hopefully with more thought behind it) :)
 


quincy

Senior Member
What is the name of your state? California

Is there a disclaimer I can add to my text messages to prevent them from being used against me in court? I know that the text message may be inadmissible if its not clear who sent it, so maybe something like "Due to the uncertainty behind the sender of this text message, this text can not be used as evidence...." or something along those lines (but hopefully with more thought behind it) :)
No. Sorry. There is no disclaimer that will protect the texts from being used against you.

The texts would need to be authenticated, though, for use as evidence - and the cost to authenticate can be a deterrent.
 

quincy

Senior Member
It is always best to leave unwritten anything that you fear might be used against you later.
 

Taxing Matters

Overtaxed Member
What is the name of your state? California

Is there a disclaimer I can add to my text messages to prevent them from being used against me in court? I know that the text message may be inadmissible if its not clear who sent it, so maybe something like "Due to the uncertainty behind the sender of this text message, this text can not be used as evidence...." or something along those lines (but hopefully with more thought behind it) :)
No. You cannot prevent your messages from being used as evidence against you, either criminally or civilly, simply by attaching a statement that asserts the message cannot be used evidence. The reason for that should be plainly obvious: it would enable people to avoid the consequences of their wrongful acts if they get to control what evidence is used against them.
 

Zigner

Senior Member, Non-Attorney
There is a caveat: If these text messages are part of a settlement discussion, then they won't matter in court anyway, generally speaking. "I'll kill you if you don't take my offer" is much different than "I'll sweeten the pot with some home baked cookies if you take my offer".
 

FlyingRon

Senior Member
Actually, they don't necessarily need authentication. The recipient can certainly attest to them being received. Proving that you sent them would require authentication, but that may or may not be required depending on what else is going on.
 

quincy

Senior Member
Actually, they don't necessarily need authentication. The recipient can certainly attest to them being received. Proving that you sent them would require authentication, but that may or may not be required depending on what else is going on.
Authentication would only be necessary if the legitimacy of the texts is challenged. This might not be much of an issue in small claims but it really depends on the texts and what the texts are meant to illustrate.
 

Taxing Matters

Overtaxed Member
Actually, they don't necessarily need authentication. The recipient can certainly attest to them being received. Proving that you sent them would require authentication, but that may or may not be required depending on what else is going on.
I understand what you are getting at, but technically it does have to authenticated. The rules of evidence require authentication — as quincy notes the opposing side may object if that is not done. But understand that authentication is simply showing that the evidence is what you claim it to be. If you want to prove the the texts were the ones that Becky received you cannot just show the messages to the court and say that they were the messages Becky received. You instead put Becky on the stand, show her the text messages you wish to admit, and have he state that the texts you show her were in fact the ones she received. That is all that would be all that is needed to authenticate them for the purpose you wish to use them. What I'm getting at here is that the term authentication in evidence law does not refer to some kind of scientific evidence or expert testimony/report, though the word may convey that impression to nonlawyers. It is something much more basic than that.
 

quincy

Senior Member
It could require expert authentication, however, if testimony on authenticity is challenged.

In small claims, the "it is what I say it is" will often be enough. But at times it is not that easy, and you then have one expert's opinion pitted against an opposing expert's opinion.

And once you start needing expert testimony, the cost of the suit escalates quickly. :)
 

FlyingRon

Senior Member
I understand what you are getting at, but technically it does have to authenticated. The rules of evidence require authentication — a
It needs foundation. The foundation is that the person whose phone it is says "Here's what I received."
That's different than proving who the sender was (authentication) and that they actually sent the message as introduced.
 

Taxing Matters

Overtaxed Member
It needs foundation. The foundation is that the person whose phone it is says "Here's what I received."
That's different than proving who the sender was (authentication) and that they actually sent the message as introduced.
You need both. The foundation lays the groundwork for admission by setting up how what follows will be relevant to the case, that the person testifying has personal knowledge of it, etc. Authentication is the process of asserting that the document you seek to admit is genuine, i.e. what you say it is. See e.g. Federal Rule of Evidence 901(a), which provides the basic authentication rule in federal court cases: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” What you need to produce to authenticate it depends on what the document is and the reason for which you want it admitted. Thus my earlier example. There is overlap between foundation and authentication in that some of the same testimony from the witness can help you both lay the foundation and authenticate the evidence.
 

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