By: Hayden-Anne Breedlove,
It is crucial for attorneys to keep up with societal changes in communication. As a second-year law student, I recently finished my Evidence course, in which I learned about the ins-and-outs of the Federal Rules of Evidence. During a recent panel of guest speakers, the panelists kept emphasizing the importance of change and keeping up with the changes, specifically in regards to technology. As technology advances, so does the type and forms of messages we as society are able to send and receive. Gone are the days of sending a letter through snail mail or telephoning your ex-spouse to arrange a visitation. Instead, people communicate through text messages, emails, Facebook messages, Snapchats, and a plethora of other forms of electronic communication. It is, therefore, crucial for attorneys to understand and be on top of their knowledge of these new forms of social media and their admissibility in the courtroom. In a recent case, service was even found to be acceptable via Facebook, when all other avenues had proved unsuccessful.
As is the case with any piece of evidence, a proper foundation for admissibility must be laid. This means that a background and context must be provided for your evidence to be admitted. The evidence must also be relevant to the case and authenticated.
Authentication is usually done by a witness giving testimony identifying what the document is or calling a custodian of record who can testify to the accuracy of the contents of the document. However, issues with authentication arise with electronic messages, especially in divorce proceedings.
Circumstantial evidence is necessary for authenticating electronic messages. There must be 1) a printed out version of the messages along with 2) a statement of who the author or sender of the message was.
The first step is simple, as there is a low threshold for providing a printed copy. The second step, however, is more complicated. Identifying who the sender of the message was requires testimony describing distinctive characteristics such as appearance, contents, substance, or a domain. It would also be helpful to have a witness to testify as to the person writing the message.
Text messages are an obvious form of evidence that can be used against a spouse in a divorce case. Flirty text messages or inappropriate photos being sent to someone other than the spouse seem obvious as something that can be used against the sender. A recent Virginia case held that text messages constitute a “writing” for purposes of the best evidence rule and are therefore, assuming other evidence rules and requirements are met, admissible.
However, text messages sent to friends or family that express anger or frustration about a spouse or child can be helpful or harmful to the case, too. A text to a friend talking about how annoying the child is can be used to show the spouse’s state of mind and disposition towards the child. This can be helpful in determining custody and visitation.
Cell phones are not just useful for finding incriminating text messages. Call logs can also be helpful in a divorce case. Joint phone plans allow a spouse to simply log into the account and look at the calls made to and from each spouse’s line in order to catch a suspected adultering spouse.
Social media has become a mecca of information for divorce attorneys. With people posting information and updates about their daily lives through Facebook posts, tweets, or Instagram photos, it is easy to find information about a person’s day-to-day routines. Information found on social media can tell what a person does each day, with whom, and what their reactions and emotions were towards these events.
GPS has become a feature available to everyone. Gone are the days of using maps and asking a gas station clerk for directions. It is easy to determine where a spouse has traveled by simply opening up their GPS app on their phone and looking at the recent locations. With the internet, it is easy to Google the address and find out where it is, whether it is a business, or a private residence.
It is illegal in Virginia to attach a GPS tracking system to someone’s car without their consent. However, private investigators are a common resource used to follow your spouse. Private investigators can follow and collect evidence of a cheating spouse that can be used in a case.
Social media, text messages, and call logs can be used in divorce cases to uncover hidden assets or income, provide proof of spousal misconduct, or provide evidence of poor parenting behavior. It can also be used to prove and calculate child and spousal support. Therefore, it is crucial for both attorneys and law students to understand the ins-and-outs of social media.
 See Judge Michele Lowrance & Pamela J. Hutul, Social Media in Divorce Proceedings, Family Law Magazine (Dec. 30, 2016), http://familylawyermagazine.com/articles/social-media-in-divorce-proceedings/; see also Shalamar Parham, How Social Media Posts Are Used as Evidence in Divorce and Family Law Cases, Divorce Magazine (Oct. 29, 2016), http://www.divorcemag.com/blog/how-social-media-posts-are-used-as-evidence-in-divorce-and-family-law-cases.
 Baidoo v. Blood-Dzraku, 48 Misc. 3d 309, 310 (2015).
 Va. R. Evid. 2:403.
 Va. R. Evid. 2:901.
 See generally Authentication of Electronically Stored Evidence, Including Text Messages and E-mail, 34 A.L.R.6th 253 (last accessed Jan. 24, 2018).
 Harlow v. Comm., 204 Va. 385 (1963).
 Brandon K. Fellers & Kristin M. Sempeles, How to Outsmart a Smartphone: Practical Tips on How to Use Electronic Messaging Evidence in the Courtroom, Virginia Lawyer (June 2017).
 Dalton v. Comm., 62 Va. App. 113 (2013).
 Digital Divorce, A Guide for Social Media & Digital Communications in Divorce, McKinley Irvin Family Law (last accessed Jan. 24, 2018), https://www.mckinleyirvin.com/Resources/Digital-Divorce-A-Guide-for-Social-Media-Digital/Social-Media-Divorce-Evidence.aspx.
 VA Code § 18.2-60.5.
Image Source: http://www.amarallaw.com/blog/2013/04/using-cell-phones-and-social-media-in-divorce-in-massachusetts.shtml.