How Not to Spoil the Evidence

While text messages are difficult to retrieve, it’s not impossible to access them, and once you’ve got them they can serve as excellent proof of infidelity in divorce cases. But, do it wrong, and you may be left with slam-dunk proof of an affair that’s useless in court.

Texts Accessed Illegally

Paul Talbert, a matrimonial attorney and partner at Chemtob Moss Forman and Talbert, LLP, in New York City, represented a client whose husband waited until she was showering to check her text messages for proof of infidelity. He discovered that she was having an affair with a co-worker after handing the device to a private investigator waiting outside his home. The private eye downloaded her text messages, getting the proof the woman’s husband needed for court.

The client was mortified that the affair was discovered. “The husband immediately filed for divorce, and the wife wanted to quickly resolve the settlement,” Talbert says. He’s had other clients who have discovered cheating by spouses after searching text messages stored on mobile devices but warns that criminal charges are possible for anyone breaking into password-protected phones.

The legal stakes are higher when the messaging device is owned by an employer. If a spouse accesses information in the device, he or she could face federal charges, according to Steve Ward, president of Trademark Associates of New York, an investigative firm that specializes in computer forensics and intellectual property.

“Technically, you couldn’t have access to that because it would be owned by his company or her company,” he says. If the device is being paid for by marital assets, then it might not be as risky. But if the device is usually used for work and the information is routed through an office server, any messages can be considered company property. Ward knows of one case in which a wife had the hard drive of her husband’s laptop examined, claiming it was marital property. The court found in the husband’s favor since the laptop was paid for the husband’s business and was considered a corporate asset.

Chain of Custody Broken

Authentication is another problem, according to Ward. If accessed legally, transcripts of authenticated messages can be admitted into court. But once someone accesses the text messages, the data can be impossible to authenticate. “It may be considered corrupted and unusable in court,” Ward says. How does it get corrupted? Often a spouse can’t help but send a text from the cheater’s phone to the person they’ve been texting with to determine who it is, or let them know they’ve been caught.

Right there, that blows the case. “Who’s to say that out of those 50 messages that 25 are not from the spouse,” Ward says. “That can mean that all of the messages stored on the device are no longer admissible because it is impossible to know if the snooping spouse sent one message or many,” he says.

To walk the legal line, Ward and his investigators keep a strong chain of custody when gaining access to evidence like text messages and e-mails. They document who looked into the evidence, when and how. They usually put images of the hard drive on a separate system so that they never touch the original information.