SEPTEMBER 2024 | 59 THE OKLAHOMA BAR JOURNAL TEXT MESSAGES AS EXHIBITS Text messages to be used as trial exhibits must be sufficiently detailed for their proper foundation to be established. First, the parties involved in the communication must be identified. This is commonly accomplished by noting the names of the parties at the top of each message. The individual offering the text messages should also testify as to whom they were texting. In addition, the date must be identified so the judge knows when the text communications occurred. A text message exchange that occurred five years prior to trial may not be relevant or carry the same weight as an exchange that occurred shortly before trial. The individual offering the text message exchange can testify as to the date, but best practices are for it to be noted in the messages. The text message exchange must be accurate. It cannot be altered. Finally, the text message exchange must be complete. One party cannot pick certain parts and omit others. GETTING TEXTS INTO THE RECORD When the proposed exhibit is marked for identification, the trial attorney addresses the judge and states, “Your Honor, may I approach the witness?” As counsel does so, they identify the exhibit on the record by stating, “I am handing you what, for identification purposes only, has been marked as Respondent’s Exhibit 12, and I would like the record to reflect that opposing counsel has been given a copy of this.” At that time, a copy is given to opposing counsel, or even better, the trial attorney has already given a copy to opposing counsel well in advance of trial. As counsel approaches the witness and hands them the exhibit, the trial attorney will say, “I am handing you what has been marked as Respondent’s Exhibit 12 for identification purposes only. Do you recognize this document?” And then, the trial attorney will begin to lay the foundation. Next, have the witness lay the appropriate foundation with their testimony to identify and authenticate the exhibit. In the law of evidence, authentication refers to the procedure through which evidence – especially documentary and physical evidence – is certified to be authentic rather than counterfeited. One way to authenticate evidence is to have a witness testify as to the chain of custody from discovery to the time of trial. If this occurs during cross- examination, the trial attorney can lead the witness by saying: “You agree with me that this is a text message exchange. This text message exchange took place on [state the dates identified on the exhibit]. This text message exchange was between you and the following phone number [state that number]. You agree with me that the phone number you recognize to be that of the Petitioner [or opposing party] in this matter. This text message exchange covers the discussion topic of [state the topic – for example, the kids’ drop-off location]. This is the text message exchange that occurred between you and the Petitioner in this matter. You recognize this, and this is the full and complete text message exchange that occurred on this date in regard to this matter.” At that time, the trial attorney should turn to the court and move for admission by saying, “Your Honor, at this time, I move for the admission of Respondent’s Exhibit Number 12.” The court will then allow opposing counsel to lodge any objections and then rule on any objections. If no objections are made or they are overruled, the evidence is admitted. When seeking to admit evidence into the record, the trial lawyer needs to remain persistent. If at first they fail, they should try to understand the opposing counsel’s objection and think about how to overcome the objection. Usually, judges know that lawyers without sufficient experience will give up easily. Therefore, it is important to note that it is still valid when a lawyer continues down the path on which they started and makes multiple attempts to have evidence admitted. As a practical suggestion, a trial attorney can talk about the exhibit and ask enough questions so that the fact finder will understand what the exhibit is and what the message contains. One of the rules that applies here is that they cannot directly reference the contents of an exhibit until it has been admitted into evidence.8 When the exhibit is admitted, the trial attorney can start having the witness talk about the exhibit. Prior to admission, it is improper to have the witness talk about any of the contents of exhibits. OPPOSING TEXT MESSAGES AT TRIAL Below are common objections that can be made when opposing counsel attempts to admit text message exchanges at trial: 1) Improper Authentication 12 O.S. §2901 – This objection is made when opposing counsel did not lay the proper foundation. Opposing counsel did not establish the date and time of the text exchange, did not establish Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
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