fake textThe hashtag #altfacts has become popular recently after a Trump spokeswoman offered “alternative facts” to a news report. Many assert the alternative facts are, actually, falsehoods.

Texas divorce lawyers face “alternative facts” frequently. Sometimes, people interpret a situation differently, making the alternative facts more about their perception, not factual falsities. On the other hand, facts that are verifiable and not subject to interpretation may lend to alternative versions being actually false.

One situation that has arisen in divorce cases across the country involve cell phone apps that create fake text messages or other forms of fake electronic communications. Once you select an app that specializes in fake text messages, it is as simple as entering the cell number to send the text to, create the content of the message and hit send.

Fake texts hit the news recently in the Johnny Depp v. Amber Heard divorce. Heard alleged that Depp’s assistant sent her test messages detailing Depp’s remorse for abusing her. However, Depp’s personal assistant claims that the texts were “doctored” and that he never sent them. The police declined to file charges against Depp, citing no physical signs of abuse were observed on the night she made the claims. (See Johnny Depp and Amber Heard divorce update: police find no evidence of assault, abuse text messages ‘heavily doctored’?)

Another case in California resulted in criminal charges being filed against a party stemming from her creation of fake emails to use as evidence in a custody case. Father’s new wife sent herself abusive emails which appeared to come from the Mother, expressing anger at the new wife about the child. The emails were used in the custody case to support Father’s opposition of Mother’s request for additional time with the child. After Mother lost her custody case, she hired an investigator who discovered the falsity of the emails and linked them to an IP address belonging to the new wife. The new wife was charged criminally under a California statute that made it a crime to prepare a false document with the intent to produce it in a judicial proceeding with fraudulent or deceitful purpose. The new wife was convicted. (see California appeals court upholds conviction for fake e-mails)

This isn’t the only case of a criminal conviction for fake messages. Another woman in California was sentenced to a year in jail after being convicted of sending hundreds of threatening text messages to herself in an attempt to get her former boyfriend arrested by blaming him as authoring the messages. The woman filed a report with the police following her breakup. In fact, the police discovered that the woman used a pre-paid cell phone she purchased in the boyfriend’s name to send herself the texts. (see Woman jailed for texting threats to herself)

Using text messages in court requires proof of a strenuous predicate. First, the texts must be preserved as evidence by taking screen shots or finding another method of saving the entire conversation to be admitted at trial.

The biggest hurdle for using texts as evidence is to authenticate  the source of the message – for the judge to determine whether the texts were genuinely written, sent, or received by the parties and that they contain the full conversation. Texts can be authenticated by the other party admitting they are genuine, a witness who saw the message created or sent, circumstantial proof like from telephone company records, or “reply authentication” where a reply text is deemed authentic because it’s clearly in response to the message sent.

Lastly, text message evidence must overcome a hearsay objection as being out of court statements offered in court for the truth of the statement – which are inadmissible. A hearsay text can only come in as evidence if they fit in an exception – such as a statement by a party to the suit.

Other hurdles to admissibility of text messages in court may also include relevance, best evidence, and prejudice.

Because it is so easy to fake text messages and other types of electronic communications, courts should be extremely wary of allowing such evidence at trial and relying on it exclusively for substantive decisions in family law matters. Further, lawyers should be cautious about using such communications as probative of the requested relief to avoid propounding false evidence in court. At a minimum, allegations made where electronic communications are to be used as supportive evidence should have alternative methods of proof as well.