An Interesting Perspective on Cell Phones to Document Evidence

Posted December 19th, 2017 by .

Categories: Legal Topics.

evidence cell phones carboneIf you don’t use a cell phone as part of your daily life, you’re in a small minority. In fact, a national research group reports that 92% of Americans own some type of mobile device. More than three-quarters of the population essentially owns a portable computer in the form of a smartphone. With all that availability, it’s no wonder that a great many litigants want to use their cell phones to document evidence.

However, it’s not that simple. No matter how many courtroom dramas you see on television, there are still some rules when it comes to admitting evidence. For many, cell phones are not just about voice calls. However, smartphones take it a step further by allowing users to photograph and videotape what they deem important. And, of course, there’s always the exchange of text and email messages, as well as social media posts.

Although cell phone documentation is not necessarily restricted to any type of legal matter, it routinely comes up in domestic violence cases. A few years ago, an Ocean County Judge submitted a written opinion on the subject of using cell phones to document evidence. Although the decision only applied to the parties involved, you may find it of interest.

Is Evidence on Cell Phones Admissible?

In the matter of E.C.-v.-R.H., both parties represented themselves in court. Meanwhile, the court record was impounded and their initials used to protect their anonymity. According to the history of the case, E.C. and R.H. dated for some time. Notwithstanding, E.C. was disturbed because she claimed that R.H. was engaged in a pattern of repeated harassment.

In particular, E.C. was disturbed by R.H.’s continuous texts, emails, and social media posts. Additionally, although E.C. asked R.H. to stop telephoning her, he was relentless. Ultimately, E.C. went to court and requested a restraining order against her former boyfriend. Apparently, it was not just that the communications were nonstop. The contacts also contained a great deal of profanity.

To support her claim that she needed a restraining order, E.C. was prepared to produce documentation stored on her cell phone. Although the court acknowledged that introduction of electronically stored evidence has its place, it also cited legal issues. In fact, the court indicated that part of the problem was that E.C. appeared without an attorney and therefore was unfamiliar with the New Jersey Laws of Evidence and Civil Procedure.

So, what was the prospective victim missing as far as entering cell phone documentation into evidence? Here are some issues cited by the judge in this particular case:

  • The court found that it was impractical, if not impossible to save cellphone images without a hard copy of them printed out.
  • A hard copy of all images would need to be presented in the case that the matter was subsequently brought up on appeal.
  • Cell phones may act as mini-computers, but their reduced size means that only small portions of documents can be reviewed at a time. This means that documents cannot be viewed as a whole on one screen.
  • Text messages and email records are difficult to review side by side. This creates an issue when it comes to judicial review.
  • The court can easily encounter difficulties in reviewing items with the parties directly from the cellphone display. The screen would not accommodate three people looking at the same display at the same time.
  • Reading text or emails aloud does not allow the other party to follow along and/or dispute authenticity of the proposed evidence.
  • Oral recordings may be difficult to understand and may necessitate transcription.
  • Evidence from the cell phone cannot be preserved until the court has made a decision.

Suggestions to Preserve Evidence from Cell Phones

In making his decision regarding the admissibility of evidence contained in cell phones, the court in the E.C. v. R.H. matter made recommendations regarding the prospective categories of evidence. For example, texts, emails, and social media posts should be printed out in hard copy and submitted to the court. Likewise, photographs should also be provided in hard copy.

When it came to audio or video recordings, the court also found that it was practical that copies were available on CD, DVD or cassette formatting. This would make it easier for all involved.

We Can Help

At the Law Offices of Anthony Carbone, we have many years of experience presenting evidence to support our client’s cases. We are available to discuss your legal issues and review your case with you. Please give us a call to see how we can help!

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