Digital communications have transformed the evidentiary landscape in Article 120 cases. Text messages, social media posts, emails, and direct messages exchanged before, during, and after an alleged incident can provide crucial context that the complaining witness’s testimony alone does not capture. A defense attorney who secures and analyzes this record before trial is working with a set of facts that the prosecution may have minimized or ignored.
The process of getting this evidence admitted is governed by the Military Rules of Evidence and requires authentication, relevance arguments, and in some cases a ruling on whether the material implicates the Military Rules of Evidence’s rape shield provisions. Courts have developed a body of case law on when prior communications are relevant and when they are excluded. Navigating those rules requires preparation that begins well before the trial date.
Authentication Requirements for Digital Evidence Under the MRE
Digital evidence in a court-martial must be authenticated before it can be admitted, meaning the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. For text messages and social media posts, authentication typically requires showing that the account from which the messages originated belonged to the person identified, that the messages were accurately captured and have not been altered, and that the metadata or other contextual evidence supports the claimed timeline.
Authentication can be achieved through direct testimony, circumstantial evidence, or technical documentation. A witness who personally sent and received the messages can authenticate them through testimony. A records custodian from the platform provider can authenticate records obtained through a subpoena or legal process request. Technical analysis of metadata can confirm timestamps and origin data. The defense seeking to introduce this material must anticipate the government’s authentication challenges and prepare a foundation that will survive scrutiny before the evidence reaches the panel.
How Prior Communications Provide Context for the Defense
Text messages and social media posts exchanged between the parties before and after an alleged incident can establish facts that fundamentally alter the narrative the government presents. Communications that reflect the nature of the relationship between the parties, the tone of their interactions immediately before the alleged event, and the content of their exchanges in the hours and days after are all potentially relevant to whether the alleged offense occurred as described.
A complaining witness who exchanged affectionate or ordinary messages with the accused shortly after the alleged assault presents a different picture than the government’s account typically suggests. Communications that are inconsistent with the traumatic event described in the report can create doubt about the timing, the nature of the interaction, or the state of mind attributed to the witness. Defense counsel who identify and introduce this material effectively can shift the evidentiary foundation of the case before the government’s witnesses have finished testifying.
Getting Social Media Records Through Discovery
Discovery of social media records in a court-martial case can be obtained through several mechanisms. The government is required to disclose digital communications in its possession that are material to the preparation of the defense, and any records it obtained through legal process from platform providers must be disclosed. If the government has not sought records from a platform directly, the defense may request that the court issue a subpoena or other legal process to the platform provider.
Platform providers respond to legal process differently depending on their policies and the nature of the information sought. Some providers require a court order before disclosing content; others comply with properly issued subpoenas. The defense attorney who has experience with the specific process for obtaining records from major platforms can navigate this system more efficiently than one who is doing it for the first time under trial deadline pressure. The request for platform records should be submitted as early as possible in the case, because providers retain records for varying periods and some content may be deleted if not preserved by legal hold.
When the Judge Excludes Digital Evidence and Why
Digital evidence that is otherwise relevant can be excluded by the military judge on several grounds. If the evidence implicates the Military Rules of Evidence’s rape shield provisions under MRE 412, the defense must file a motion and obtain a ruling before the evidence can be admitted. MRE 412 prohibits evidence of the victim’s prior sexual behavior or predisposition offered to prove consent or to attack credibility, but it has exceptions for specific situations where the evidence is constitutionally required or meets other specific criteria.
Authentication challenges can also result in exclusion. Digital evidence that cannot be authenticated through testimony, records, or technical means will not be admitted. And relevance objections that are sustained because the prejudicial effect of the evidence substantially outweighs its probative value can exclude material that the defense believed was helpful. Anticipating and preparing responses to each of these potential exclusion grounds before trial is part of the digital evidence strategy that sophisticated defense counsel develops in advance.
Building a Timeline Defense Using Electronic Communications
Electronic communications with timestamps create a documentary timeline that can be compared against the government’s factual theory of the case. If the government’s account places the accused and the complaining witness together at a specific time, and digital records establish that they were exchanging ordinary messages during that window, the timeline defense challenges the plausibility of the government’s account through objective evidence rather than contested testimony.
Building this timeline requires collecting all available records with timestamps, organizing them chronologically, and comparing the resulting picture against every version of the complaining witness’s account. Inconsistencies between the documentary timeline and the witness’s testimony may not always be dramatic, but even small temporal discrepancies can be used to argue that the account is unreliable. Defense counsel who present the timeline visually, through a chart or summary that the panel can follow during closing argument, give the factual inconsistencies the greatest possible impact.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.