My husband left his cell phone (which I pay for and is in my name) open and logged into Facebook. I looked at his phone and saw and recorded (through screen shots) a conversation he was having with another individual. In this conversation, he spoke candidly about matters for which I am currently divorcing him. Can I use this documented conversation in a legal setting or is it inadmissible? Thank you.
1 Answer from Attorneys
As any lawyer would (or should tell you), it depends upon how you present it and which family court judge you have.
Technically under the Rules of Evidence it is, at first glance, hearsay and therefore inadmissible. However, there are exceptions to hearsay such as "party admissions." If there is something that your husband is denying in the divorce litigation and the conversation is completely contrary to what he is claiming, then in a formal presentation in a hearing you might be able to get him to make his statement to the court and then have your husband authenticate the conversation from his phone that shows he was not telling the truth. It goes to his veracity and not to whether his first or second claim is true or not.
You could also subpoena the records from the cellular phone company and have them certify the records as having come from his phone. You could also have your husband admit that he is the only one who has access to this phone or his facebook account on his phone. Based upon these two things you can ask him if such a conversation took place on Facebook. If he denies it, then you have the records from the cellular phone company to dispute it since he is the only one with access to his phone and facebook account through his phone. It is best to actually subpoena a person at the cellular company called the "Keeper of the Records" to appear with the records and testify that they are authentic, this is what most attorneys do to get the documents into evidence.
You can also have a 3rd Party who is a friend of your husband on facebook copy the screens with the conversation if they are present there and they can testify as to what they copied and printed on such and such a day based upon their own personal information. This might be admissible as an admission by your husband or as an observation by a third party who shared it with you and it may form your belief or 'state of mind' that your husband cheated on you or whatever the case may be in the conversation.
Therefore, yes there are a number of ways to TRY to get these things into evidence depending upon their significance and how they are presented. It may depend upon whether the Judge simply feels it's important enough that he or she feels it should be heard or considered in order for the judge to make an appropriate decision in the case.
There is never any guarantee that you absolutely will be able to get something into evidence, even if it is well within the Rules of Evidence. I have had things that are perfectly within the Rules of Evidence but the judge refuses to hear them even when I explain why they should be considered according to the rules.
Ultimately, it all falls to the judges' decisions and the judge's discretion. Should you be able to get this information in? Yes, if the information is significant enough and you and find the best way to approach it. Remember, nothing is evidence until the Judge accepts it and is willing to consider it as evidence.
My very best to you in this matter since getting technology information into evidence is a new and challenging area of law for all of us, especially in the area of family law.