Outgoing Text Messages Admissible in Evidence

The Georgia Supreme Court ruled on 11/7/2016 that outgoing text messages found in a cell phone are admissible in evidence as admissions of the person who sent them. However, incoming text messages are inadmissible hearsay, though their admission in evidence was “harmless” under the circumstances of the case. Glispie v. State, decided November 7, 2016.

This ruling arose in the context of the criminal prosecution of an alleged drug dealer. That would have been a great interest in my past life as a prosecutor, though of course cell phones had not been invented when I was sending criminals to prison.

Text messages can be obtained by law enforcement with a search warrant based upon probable cause to examine the contents of a cell phone. If I were still a prosecutor, I would probably seek search warrants for contents of cell phones in a lot of cases.

In the civil context, however, we do not have that option. We cannot get search warrants in civil cases. Cell phone service providers, e.g., AT&T, Verizon, etc., typically do not keep text messages in the system more than perhaps 72 hours.

The only way to obtain those in a civil case is to obtain a court order for a forensic download of the phone. In addition to records of voice calls placed and received (though not the content of the calls, and text messages, forensic examination of wireless devices such as cell phones can reveal patterns of conduct and communication, including the times that the driver was using an app, typing a text, or watching a video.  It has location history for the phone, showing where the driver was at various points in time.  It includes calls, texts and emails between the driver and the trucking company.  It may include records of communications with employer personnel inconsistent with prudent driver supervision by a motor carrier regarding fatigue management.

Parties opposing forensic download of a cell phone may assert claim of personal privacy. However, where the cell phone user killed someone, that fact may outweigh personal privacy. A trial court judge would be justified in ordering the download subject to a protective order limiting delicate personal information to use in the case after in camera review by the court.

Ken Shigley was an Assistant District Attorney in Paulding County in the last 1970’s. he is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). His law practice is focused on catastrophic injury and wrongful death including those arising from auto accidents, commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries.