Posted by Nydia Streets of Streets Law in Florida Domestic Violence

Can text messages be entered into evidence in a Florida family law case? The answer depends on whether or not the messages can be authenticated. The party asking to have the text messages considered has the burden of proving who sent the message and that it is a true and correct copy of the message sent. This issue came up in the case Walker v. Harley-Anderson, 4D19-2216 (Fla. 4th DCA September 9, 2020).

The parties to this domestic violence case admittedly did not know each other personally. One party was initially accused by the other of sending threatening text messages, and an injunction against stalking was sought. The accused then filed a counter-petition for protection from stalking, alleging the accuser was sending her threatening text messages. The initially accused party (for simplicity, we’ll call her the ex-girlfriend) was the ex-girlfriend of the initial accuser’s nephew (and we’ll call her the aunt). At the hearing on the petition for stalking, the aunt entered into evidence 10 pages of text messages she alleged the ex-girlfriend sent to her. The ex-girlfriend objected, stating she did not recognize the telephone numbers from which the messages were sent.

The court asked the aunt how she knew these messages were from the ex-girlfriend, and she reportedly replied “she knew the messages were from [the ex-girlfriend] because of the content of the messages, that they were intended to harass her, and [the ex-girlfriend] had stated that she would harass [the aunt’s] nephew’s family.” The ex-girlfriend denied sending the messages, entered her phone records which did not match any of the phone numbers on the text messages entered into evidence by the aunt, and presented to the court threatening text messages she received as well. The ex-girlfriend admitted she did not know who sent the messages to her, but concluded they must be from the aunt’s family because of their content. The trial court granted the aunt’s petition for stalking and denied the ex-girlfriend’s counter-petition, reasoning the texts presented by the aunt most likely came from ex-girlfriend because “no alternative” had been provided. The ex-girlfriend appealed.

The appellate court started with the legal standard of authenticity: “‘In determining whether the evidence submitted is sufficient for this purpose [of authentication], the trial judge must evaluate each instance on its own merits, there being no specific list of requirements for such a determination.’ Justus v. State, 438 So. 2d 358, 365 (Fla. 1983); Symonette v. State, 100 So. 3d 180, 183 (Fla. 4th DCA 2012). ‘Evidence may be authenticated by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances. In addition, the evidence may be authenticated either by using extrinsic evidence, or by showing that it meets the requirements for self-authentication.’ Jackson v. State, 979 So. 2d 1153, 1154 (Fla. 5th DCA 2008).”

In applying this standard to the facts of this case, the appellate court concluded “In this case, there was no direct evidence that the messages were sent by appellant. No one saw or heard appellant send the messages. The messages appear to be from different phone numbers, and none of the origination numbers match the phone number of appellant, according to her phone bill placed into evidence. The trial court did not analyze the content of the messages but simply found no other explanation as to who sent them. This is insufficient, particularly after our review of the messages themselves.”

Knowing how and when to submit your evidence to the court, and to object to improper evidence is important in preserving your rights. Schedule a consultation with a Miami family law attorney to understand how the law may be applied to your case.