Texts, Apps and Digital Evidence in Michigan Sex Crime Cases

Text messages, social media posts, photographs and recordings can be offered by either side in a Michigan sex crime case. They are handled under the ordinary rules of evidence: the item has to be authenticated under MRE 901, and what it says has to clear the rule against hearsay.^[1][6] How the item was obtained is a separate question, governed by the law of search warrants and by the discovery rules.^[7][8]

Scope of this page. It covers authentication, a party's own statements, the verified rules on phone warrants, and access to phone data in discovery. It does not cover forensic science: how devices are examined, how files or accounts are attributed to a person, or location data. No source used for this guide addresses those subjects, so nothing is said about them here.

Step one: authentication under MRE 901

Authentication answers the question "is this what you say it is?" The rule states: "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what its proponent claims it is."^[1] The proponent is the side offering the item.

The rule gives examples, which it calls "examples only—not a complete list."^[1] Those that fit digital items include:

• A witness with knowledge. "Testimony that an item is what it is claimed to be."^[1]
• Distinctive characteristics. "The appearance, contents, substance, internal patterns, or other distinctive characteristics of an item, taken together with all the circumstances."^[1]
• Voice. An opinion identifying a person's voice, "whether heard firsthand or through mechanical or electronic transmission or recording," based on hearing the voice under circumstances that connect it with the alleged speaker.^[1]
• A process or system. "Evidence describing a process or system and showing that it produces an accurate result."^[1]

Two questions, two decision-makers

The Sexual Assault Benchbook quotes the Court of Appeals on how authenticity disputes are divided. The first question is "whether the evidence has been authenticated—whether there is sufficient reason to believe that the evidence is what its proponent claims for purposes of admission into evidence." The second is "whether the evidence is actually authentic or genuine," which goes to "evidentiary weight and reliability." The judge alone decides the first; the fact-finder alone answers the second.^[9]

The threshold for the first question is described in the Evidence Benchbook's quotations from the same case: the proponent need "only ... make a prima facie showing that a reasonable juror might conclude that the proffered evidence is what the proponent claims it to be," and the supporting evidence "may be direct or circumstantial and need not be free of all doubt."^[10] So an item can be admitted and the jury can still be asked to decide that it is not genuine, or not from the person it is attributed to.^[9]

Social media accounts

The Evidence Benchbook quotes a 2021 Court of Appeals decision, People v Smith, on social media. Courts deciding whether an account is authentic "should be mindful of concerns such as 'fake social-media accounts, hacked accounts, and so-called deep fakes.'" In that case, which the court called "a close call," four Facebook posts were held authenticated; the benchbook reports that three of the four were nonetheless improperly admitted because they consisted of hearsay for which there was no exception, an error found harmless.^[11] The court added that "[a]s technology advances, trial courts and lawyers will need to be vigilant when considering questions of authenticity, at both the first and second stages."^[11]

Records obtained from a company can be authenticated another way. A record of a regularly conducted activity that carries a certification from the custodian or another qualified person is self-authenticating under MRE 902(11), and the side offering it must give reasonable written notice before the trial or hearing and make the record and certification available for inspection.^[12]

Photographs and video

For a photograph, the Sexual Assault Benchbook quotes the Court of Appeals: "All that is required for the admission of a photograph is testimony of an individual familiar with the scene photographed that it accurately reflects the scene photographed." The photographer's testimony was not necessary in that case.^[13]

Originals and copies

An original writing, recording, or photograph is required to prove its content unless the rules or a statute provide otherwise, but a duplicate "is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate."^[14]

Step two: hearsay and a party's own statements

A message is a written statement. If it is offered to prove that what it says is true, and the person who wrote it is not saying it from the witness stand, it meets the definition of hearsay, and hearsay is not admissible unless the rules provide otherwise.^[6]

A separate rule covers a party's own words. A statement "offered against an opposing party" that "was made by the party in an individual or representative capacity" is not hearsay. So is a statement "the party manifested that it adopted or believed to be true."^[2] In a criminal case the parties are the prosecution and the defendant, so this is the rule under which a defendant's own messages are offered by the prosecution.^[2]

Whose message	Offered by	Hearsay rule that applies
The defendant's	The prosecution	Not hearsay as an opposing party's statement, MRE 801(d)(2)(A)[2]
Anyone else's, including the complainant's	Either side, to prove what it says is true	Hearsay unless a rule provides otherwise, MRE 801(c) and 802[6]
Any message	Either side, for a purpose other than proving what it says is true	Outside the definition of hearsay, which covers statements offered "to prove the truth of the matter asserted"[6]

People v Smith shows why both steps matter: the posts there passed authentication, yet most were still inadmissible as hearsay.^[11] The hearsay exceptions and the Confrontation Clause are explained in the sister guide's pages on hearsay and the Confrontation Clause and text messages and social media evidence.

Relevance and unfair prejudice remain available objections. A court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues or misleading the jury, among other things.^[15] Messages about a complainant's sexual conduct are also subject to the rape shield law.^[16]

Recorded calls and recorded interrogations

Recordings raise an additional question: whether the recording was lawful to make. Michigan's eavesdropping statute, how courts have read it for a participant's own recording, and police-directed calls are covered in pretext phone calls and recorded conversations.

Police questioning has its own recording rule. An officer interrogating a person in custodial detention about a major felony "shall make a time-stamped, audiovisual recording of the entire interrogation," including the notification of Miranda rights.^[17] If a required recording was not made, the jury is instructed that it may consider the absence of a recording in evaluating the evidence relating to the statement.^[18]

How police get phone data: the warrant rules

A judge or district court magistrate issues a search warrant when an affidavit made on oath establishes grounds and the judge or magistrate "is satisfied that there is probable cause for the search."^[7]

A warrant has limits once a phone is in police hands. The Criminal Proceedings Benchbook quotes the Michigan Supreme Court's 2020 decision in People v Hughes: "a warrant to search a suspect's digital cell-phone data for evidence of one crime does not enable a search of that same data for evidence of another crime without obtaining a second warrant."^[3] This page states Hughes only as that quotation does. Searches, consent and challenges to them are covered in phone and computer searches in sex crime cases, and the procedure for asking a court to exclude evidence is in the sister guide's page on motions to suppress evidence.

Discovery: who gets to see what

In a felony case, discovery is governed by MCR 6.201. On request, a party must give the other parties a description of, and an opportunity to inspect, "any tangible physical evidence that the party may introduce at trial, including any document, photograph, or other paper, with copies to be provided on request."^[8] On request the prosecuting attorney must provide "any written or recorded statements, including electronically recorded statements, by a defendant, codefendant, or accomplice pertaining to the case," and any affidavit, warrant and return for a search or seizure in the case.^[19]

The complainant's phone

A 2026 Court of Appeals decision, People v Leonard, addresses defense requests for a complainant's phone data. This page relies on the Sexual Assault Benchbook's quotations from it. The defendant "is entitled to text messages from the complainants' cellular phone data discussing defendant and the [case against him], as those text messages may have impeachment value at trial." But nothing yet requires the prosecution "to surrender the entirety of a complainant's cellular phone data to a defendant."^[20]

The court adopted a two-step process. First, the trial court reviews the data in camera, meaning privately, "to ascertain whether they contain evidence that is reasonably necessary, and therefore essential, to the defense. Only when the trial court finds such evidence, should it be provided to the defendant."^[4] Second, interested parties, "such as the complainants themselves, must be allowed an opportunity to testify or discuss the matter with the trial court about the least intrusive method" for identifying potentially relevant material.^[20] A similar private-review procedure applies to privileged records; see access to counseling and medical records.

Images in child sexually abusive material cases

One category of image evidence is not copied for the defense. In a prosecution under MCL 750.145c, the court "shall deny any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any photographic or other pictorial evidence of a child engaging in a listed sexual act if the prosecuting attorney makes that evidence reasonably available to the defendant." Evidence is reasonably available if the prosecutor gives the defendant, defense counsel and any proposed defense expert an opportunity to inspect, view and examine it at a facility approved by the prosecuting attorney.^[21] The offense is explained in child sexually abusive material laws.

Keeping evidence intact

Michigan's statute on tampering applies to digital material as it does to anything else. A person "shall not ... [k]nowingly and intentionally remove, alter, conceal, destroy, or otherwise tamper with evidence to be offered in a present or future official proceeding."^[5] A violation is a felony punishable by imprisonment for not more than 4 years or a fine of not more than $5,000, or both; if committed in a criminal case in which the offense carries a maximum of more than 10 years, or life or any term of years, the maximum is 10 years or a fine of not more than $20,000, or both.^[5]

The statute covers "a present or future official proceeding," so it is not limited to cases already in court.^[5] Related cautions are collected in mistakes to avoid in a sex crime investigation.

What people get wrong

"A screenshot proves itself." Every item has to be authenticated, and even an admitted item can be challenged before the jury as not genuine.^[1][9]

"If it is authentic, it comes in." Authentication is one requirement. In People v Smith, authenticated posts were still improperly admitted because they were hearsay.^[11]

"Police can search a whole phone for anything once they have a warrant." Hughes says a warrant for evidence of one crime does not enable a search for evidence of another without a second warrant.^[3]

"The defense gets the accuser's entire phone." Leonard says the prosecution is not required to surrender the entirety of the data.^[4]

Biological evidence is covered separately in DNA evidence in sex crime cases, and the way evidence is presented at trial in what happens at a CSC trial.