03 May You May Be Missing Critical Information for your Case!
70% of public agencies surveyed in 2018 reported they allow text messages for official business, but less than 50% of these agencies have policies in place to capture these messages. http://bitly.ws/3Q7p So, you might ask “Who cares if text messages aren’t saved?”
The answer is – You do! Especially if you are involved in any legal proceeding whatsoever involving a governement agency.
Here’s an example. In 2015, eight criminal cases were dropped in San Francisco because police officers were implicated in exchanging racist and homophobic text messages — officers whose judgment may have been clouded by bias. http://bitly.ws/3Q7q
What other kinds of things would be revealed by text messages? If it occurs, it’s likely investigators would discuss exculpatory evidence, problems with evidence, problems with witnessess, and other issues. It’s easy to think of a scenario where this happens. In situations where a suspect is being interrogated, it’s common for the interrogator to receive text messages from upper management watching from a camera or behind the mirror. These messages contain information about the case as well as comments about the interview itself. If it’s so important for management to be texting the detectives during the investigation- why aren’t these directives retained? Aren’t they the ones driving the investigation? Why aren’t they required to testify?
There is even the famous situation involving the FBI and investigators looking at the President which involved text messages. These messages were originally thought to be lost – until a dedicated effort was made to recover them.
But rarely do government ever provide copies of text messages in discovery. That’s probably because they don’t have policies in place to save them. So, defendants don’t get to see them. Even if they ask for them, they will probably be met with a response that they don’t exist – because they don’t! They’ve been erased, or the investigators don’t know how to retrieve them.
These types of records typically are not retained. Or, if they are, they are only on the cell phone of the government employee. But, they should be part of any criminal discovery. If you don’t see any communications such as emails or text messages – ask for them! Sometimes, it just takes an effort to retrieve them.