Accordingly to a Pew Internet Project research study, as of 2014:
- 90% of American adults own a cell phone
- 32% of American adults own an e-reader
- 42% of American adults own a tablet computer
- 64% of American adults own a smartphone
As with all advances in technology however, we take the good with the bad. For example:
The good: You can see cute pictures of your kids every day while you’re at work.
The bad: You distract yourself all day with cute pictures of your kids while you’re at work.
The good: You can communicate with that special someone day and night.
The bad: That special someone turns out to be not-so-special and communicates with you day and night.
Cell phones enable us to access information rapidly, and to communicate with loved ones around the world instantaneously. But that instantaneous communication comes at a price.
In the recent decision of E.C. v. R.H., Judge Jones in Ocean County examined the proper use of cell phone evidence when communications potentially cross the line from wanted to unwanted; from mild annoyance, to harassment.
E.C. involved a situation where one party alleged that she was being harassed via text messages, voicemails and social media evidence. She wanted the defendant to leave her alone, and asked the Court to enter a final restraining order against him. In support of her claim, E.C. sought to introduce evidence directly from her cell phone.
In examining the question of how to appropriate accept evidence from E.C.’s cell phone into the record, Judge Jones delineated a litany of issues with utilizing evidence that comes directly from the cell phone:
- When a litigant attempts to offer images on a cell phone screen, it becomes difficult to preserve the image for the record unless there is a hard copy printout of the image as well.
- The small screen on a cell phone makes it impossible to see an entire document at one time, which create reading challenges even after on-screen enlargement. Scrolling can become time consuming and cumbersome.
- It is impractical for the judge and both of the parties to view the evidence on the cell phone at the same time. This would require the litigants to pass around the cell phone, which is even more complicated when there is a temporary restraining order in place and the parties cannot physically sit or stand next to each other to view the cell phone evidence at the same time.
- If a party orally reads the text or email in to the record, without a hard copy in front of each party, there is no guarantee that the oral recitation will be accurate. It can also be time consuming and confusing if there are multiple lengthy text messages.
- With voicemails stored directly on cell phones, it is difficult to hear the exact words. The Court suggested that a CD or transcript may be useful to assist in deciphering the recording.
- The evidence cannot be preserved so that the Court can review it as part of the deliberation process before rending a decision.
In light of the above issues, the Court suggested that the following rules of thumb should be followed for litigants wishing to introduce evidence stored on cell phones:
Cell Phone Evidence Hardcopy form
A) e-mails and texts printed on paper
B) Social media messages printed on paper
C) Photographs printed on paper
D) Audio Recording duplicated on C.D. or cassette
E) Video Recording duplicated on DVD
With evidence rules struggling to keep up with rapidly changing technology, Judge Jones’ decision again provides a practical solution to a very prevalent and difficult problem faced by pro se litigants and attorneys alike. Indeed, the goal of the prevention of domestic violence act is to provide victims of domestic violence with protection from harm. The last thing that should happen is for a victim to be denied that protection simply because they were unable to introduce relevant and compelling evidence because it was stored in an unusable format.
So what should you do if you have evidence stored on your phone? Here are just a few tips I’ve picked up along the way from my own experience:
Electronic Messages (emails, text messages, social media messages, etc.):
The best thing to do is to take screenshots of electronic messages and send them to your attorney for review. There are also paid services available that can do a “dump” of your phone into a PDF document that may be more helpful if there are a large volume of messages you wish to preserve and introduce as evidence. Make sure they are clear such that a third party could decipher the sender of the text message and the receiver of the text message.
Also, be sure to bring the cell phone to Court just in case there is an allegation that the text messages were somehow altered. I once encountered a situation where one party had deleted individual text messages before sending them to her attorney and my client was able to take out his phone and demonstrate that the messages were tampered with. It ruined the other side’s credibility and demonstrated that the whole text message exchange was rather innocuous, and in fact, demonstrated that my client was in the right.
For audio recordings, while a CD should certainly be made so that the Court can preserve the evidence and listen back to it during deliberations, you should also make sure that there is a place to play the recording in the courtroom. A laptop usually cannot give you the kind of audio reach for all parties, and the court to hear the message. You should opt for an audio system with either a CD slot or an auxiliary jack so that you can connect your cell phone to the speakers.
Again, make sure there is a place to play video recordings in the courtroom. Again, there are issues with using a laptop, both because it’s too small for everyone to see, and because the audio is insufficient.
Just in case you need to authenticate video, make sure to preserve the original recording on your cell phone so that the Court can verify that the duplicate has not been altered.
Clients should be counseled early on regarding the necessity of preserving information. Similarly, when litigants are pro se they should be advised when they obtain a temporary restraining order that cell phone evidence will not be admitted unless it is in a usable format.
In fact, Judge Jones suggested the following language be added to temporary restraining orders:
If either party is seeking to introduce information stored on his/her cell phone (emails/texts/Facebook posts, etc.), such information should be printed out in triplicate in organized fashion with page numbers on the bottom right hand corner for easy reference. Additionally, if either party is seeking to introduce evidence from their cell phone relating to voice mails, video streams or photographs, same should be duplicated onto a CD or DVD as applicable so that same may be marked for identification in a tangible form.
In the end, Judge Jones allowed for a brief adjournment so that the parties could make hard copies of any cell phone evidence.
It will be interesting to see if judges around the state begin to adopt Judge Jones’ temporary restraining orders.
Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or firstname.lastname@example.org.