Electronic communications, like SMS, iMessage, WhatsApp messages, and even voicemails, can all be admitted as evidence in a trial in California. Being able to admit specific evidence is critical to success if you’re going to trial. If the communications are authenticated and relevant, barring other issues like privilege, you can use it at a trial.

How Can I Admit Electronic Communications as Evidence in California?

No matter what type of evidence you plan on using, you must comply with California’s process to ensure the evidence can be used by the court. Although the creation of electronic documents is relatively new, how to get them into evidence generally relies on the same system as documents written on paper.

Written evidence, according to the state’s Evidence Code Section 250, is anything: 

“…transmit(ed) by electronic mail…and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of how the record has been stored.”

Even though the language specifies “electronic mail” as an example of written evidence it also includes texts, WhatsApp, voicemails, and more communications found on clients’ phones.

The steps needed for communications to be used in a California state court include:

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1. Authentication

“Authentication of a writing is required before it may be received in evidence,” according to California Evidence Code Section 1401.

California Evidence Code Section 1400 states the authentication of writing means “…the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or…the establishment of such facts by any other means provided by law.”

There’s no limit on how a writing may be authenticated or proved, according to California Evidence Code Section 1410. Some methods include: 

• Testimony of a witness to the writing’s creation

• The party against whom the writing is offered admitted its authenticity in the past  

• That party acted upon the writing as if it were authentic 

• There’s evidence the writing refers to or describes matters that are unlikely to be known by anyone other than the person who is claimed to be the writing’s author

Your client or a witness may provide you with electronic communications from another party through Hearsay. Hearsay can analyze the metadata of the messages in their native form directly on mobile devices to take one significant step towards proving the message’s authenticity. This is a much better option than just screenshots, given the ease at which screenshots alone can be falsified.

In addition to just comparing the messages on your client’s phones, you could seek the other party’s versions of these communications through a request for production. They would need to act in good faith and search for them (which Hearsay makes it easy to do), object to the requests if justified, or verify they can’t find them (although it might be possible to verify the message through the phone company) or even produce them (which would authenticate those they turn over). 

2. Relevant

California Evidence Code section 210 states evidence needs to be relevant to the issues or facts of the case. The proffered evidence is “…relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” 

Section 350 of California’s Evidence Code states only relevant evidence can be admitted. The text or social media post would be relevant if it makes a fact more or less probable than if the issue was decided without this evidence. 

Even if the electronic communication is relevant, under the state’s evidence code it may be excluded if a judge decides that its value in resolving factual or legal issues in dispute is “substantially outweighed” by the likelihood that the potential evidence will:

• Unnecessarily lengthen the time needed to litigate the matter, or 

• Create a substantial danger of undue prejudice against a party, or

• Will confuse those making factual or legal findings, or 

• Mislead the jury

Even if relevant, evidence may not be admitted if a judge rules it’ll do more harm than good in deciding the case. Hearsay helps make sure judges allow the evidence by:

• Shortening the process to collect messages from clients' phones from days to nearly immediate and 

• Eliminating the burden of organizing screenshots/CSVs, reviewing and sharing only specific conversations and messages. 

• Present all the facts to the jury by sharing entire conversations and not just snippets. 

Hearsay Evidence

Under California Evidence Code Section 1200, hearsay evidence is “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” The general rule is that hearsay evidence can’t be admitted, but there are exceptions and exclusions. 

3. Secondary Evidence 

If an original document can’t be found to submit as evidence, California Evidence Code section 1521 allows the writing’s content to be proved by “otherwise admissible secondary evidence.” Electronic evidence is addressed by California Evidence Code Section 1523 if someone with personal knowledge of the writing verifies the content of the evidence presented. 

The rule states that, 

“A printed representation of computer information or a computer program is presumed to be an accurate representation of the computer information or computer program that it purports to represent…If a party to an action introduces evidence that a printed representation of computer information or computer program is inaccurate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representation of the existence and content of the computer information or computer program that it purports to represent.”

The code has a similar rule concerning images stored on a digital medium. Hearsay is the only tool able to accurately provide the exact representation of the content on the original device.

Electronic Communications Used as Evidence

Many California cases have used these communications in evidence, especially in criminal proceedings. Other cases involve civil harassment restraining orders, contract claims, and defamation claims.   

How Hearsay Can Help

Easy access to electronic communications through Hearsay can make your practice simpler and less time-consuming. Once you sort through, organize, search, and read them, they may make settling the case more compelling, whether your client is making the demand or paying the settlement. Few cases are fully litigated, but electronic communications carry more impact when the parties know they could be used at a trial.

Learn more about how Hearsay can help you and your clients by emailing us at hello@usehearsay.com or completing our online contact form today.

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Hearsay is a cutting-edge app designed to extract texts and other messages from cell phones for use in litigation. Tailored specifically for legal professionals, including lawyers, trial attorneys, mediators, and private investigators, Hearsay streamlines the process of obtaining and preserving digital evidence from mobile devices. By leveraging advanced forensic tools and techniques, Hearsay ensures that collected data is accurate, reliable, and ready for court use. Additionally, Hearsay provides valuable resources and insights through its blog, aimed at helping legal professionals stay informed about the latest developments and best practices in digital forensics and evidence management. Contact us at support@usehearsay.com.​

Legal Disclaimer

We are not lawyers, and the information provided in this article is for general informational purposes only. It is not intended as legal advice and should not be relied upon as such. For legal advice specific to your situation, please consult a qualified attorney.