Court-Martial Trial Practice Blog
Quite a few cases, especially the sexual assault ones arriving recently have involved text and chat messages as potential evidence against the client.
As is to be expected, most of the time the investigators do not seize and clone the phone to preserve evidence (although I am dealing with one CID office at Fort Lee that has done that with one of several phones). This is a failure to investigate, and as always is to be expected. What they usually do is photograph the “relevant” by their definition texts on the phone screen and nothing more.
Keep in mind that Mil. R. Evid. 106 AND 304(h)(2) apply to these texts and chats.
Another serious consideration is the possibility of fake texts and messages. A few years ago the ability to fake texts or chats was limited. Now however, there are a number of free or very inexpensive applications that can be downloaded to an iPhone or Android phone or computer. Here are some links.
http://www.mobilemadly.com/2012/01/make-fake-text-sms-call-on-android-phone.html
http://itunes.apple.com/us/app/fake-a-message-free-mms-sms!/id366024390?mt=8
http://www.makeuseof.com/dir/fake-iphone-text-fake-iphone-text-conversation/
http://www.androidzoom.com/android_applications/fake+text
http://leimobile.com/send-fake-text-messages-with-spooftexting-for-iphone/
This is why the failure to seize the phone as evidence is significant. You need the phone to investigate, and if possible prove that the complaining witness faked the texts. That has to be done through forensic examination of the phone if necessary. Also, you need the other persons phone if possible. Let’s say a complaining witness says your client sent a text. There ought to be evidence of that on your client’s phone; if not suspect a fake message. You also need to check the phones to find evidence of a ‘fake message app.’
It is very difficult months after the investigators and prosecutors failures to investigate to attack evidence that you believe may be false. We know prosecutors won’t because it doesn’t help them and they’d have to do some work.