How to Use or Defend Against Digital Evidence
Court can be intimidating, yet like most aspects of life, technology permeates nearly every aspect of the law, including how cases are presented. In any area of law, text messages are pivotal evidence in nearly any case as they can be said to contain “admissions”. Generally speaking, admissions are permitted to use as evidence as outlined in N.J. R. Evid. 803(b). Consequently, at crucial moments in trial, text messages shed favorable light on conversations, plans, criminal or civil affiliations, depending on your position in the case.
According to the Pew Research Center, 97% of Americans own smartphones. Smartphones make it much easier to store messages for years, upload them into cloud storage, and to preserve communications that may be damming. These digital conversations can be used to establish state of mind, intent, motive, opportunity, and other basis for crimes. With text messages serving as written records, they provide a valuable resource for investigators, prosecutors, and even upset spouses, ex-partners, and the like.
Brown’s Perspective on Use
The key to using different communication technology as evidence is professional introduction. For the purposes of trial, it is preferable to present text messages in a way that provides a seamless transition from exhibit to exhibit, although no amount of polish will remove some of the dirt found in these conversations. I recommend all text or emails be placed into PDF and the date and time are clearly shown, then print the pdf to bring to court.
Regarding the use of voice recordings as evidence, I highly recommend the use of a transcription service. A transcription service is a service that turns the recording into a written transcript onto paper, so that the conversation can be read clearly. This allows you to easily refer to a certain segment of the transcription to make your point, both on direct examination and cross examination. The key is for evidence purposes, to make sure the transcription is certified. In addition, if the transcription is from another language, remember the New Jersey Judiciary Language Access Plan (LAP). The LAP requires that all evidentiary documents are to be presented in English and all non-English documents intended to be introduced into evidence must be accompanied by a certified translation." Administrative Directive #01-17, "New Jersey Judiciary Language Access Plan" (Jan. 10, 2017). This means that if you have to transcript audio from another language, make sure the translation is certified, as well as the transcription.
The admissibility of digital evidence is simplified by our court rules and mainly requires authentication. The actual photographer of a photo is not required to testify, it is sufficient to simply have someone who has knowledge of what is being portrayed. It is helpful during trial to have timestamps and dates in case the witnesses cannot recall when the text, video or other evidence was sent or received. After you authenticate the evidence with the witness, you can request it be moved into evidence.
Defending against digital evidence
It is possible to defend against digital evidence. This usually occurs when a document cannot be authenticated by the person testifying about it, when a document has hearsay embedded in the documents, and does not meet one of the many exceptions.
Law enforcement often confiscates cell phones during their investigation under the guise that they will eventually obtain a warrant. Depending on the evidence they seek to procure from the phone, or what they believe is on the phone, it is improper for an officer to do this without “probable cause.” Ultimately evidence gathered improperly can be excluded prior to a trial with a suppression or exclusion motion.
The insights you can obtain from digital evidence are invaluable, critical in almost every courtroom. You need to carefully vet your evidence with an experienced attorney. Feel free to contact A.Brown Esq. LLC for a free consultation.
