Cell phones have come a long way since the Motorola DynaTac of the 1980s, a 14 inch, brick-like device weighing almost 2.5 pounds. These days, it's virtually impossible to imagine life without the functionalities of a smartphone. Therefore, it makes sense that evidence to support one's case, or discredit claims made by another, are often sent to and stored on a cell phone. This is particularly true in domestic violence hearings, which typically involve harassing and threatening communications. These communications include, but are not limited to voicemails, texts, emails and instant messages through social media apps. Litigants may also have pictures of injuries or property damage caused by the other party stored on their phone.
Such evidence would be valuable at a restraining order hearing, or other motions related to domestic violence, but the presentation of cell phone based evidence is a relatively new consideration for the family courts. Currently, there is no definitive list of court rules pertaining to evidence obtained from cell phones, but a ruling in the 2015 case of E.C. v. R.H. offers some sensible suggestions. In his ruling, Judge L.R. Jones, J.S.C. advised that such evidence must be presented in hard copy form, especially cell phone images that are small by nature. He also found it impractical to examine evidence by passing around a cell phone, since it would have to be passed around to the judge, as well as the litigants and their attorneys. In addition, the integrity of evidence seen and heard directly from a cell phone is questionable, based on the size, resolution and sound quality.
Judge Jones' suggestions for cell phone based evidence includes sensible rules such as printing out all emails, texts, social media messages and photos on standard size paper. Audio recordings such as voicemails should be converted to CD or cassette form, and video recordings should be burned onto a DVD. Such formats would make the evidence easy to copy and distribute, and to view them during the course of the trial. While these suggestions did not set a legal precedent, they established basic ground rules for judges, litigants and family law attorneys who are increasingly relying on cell phone based evidence. This is true for other types of family law proceedings such as divorce based on sensitive grounds such as adultery and extreme cruelty. It should also be noted that cell phones are being used to research and uncover evidence, although what you find may not be admissible based on how and where you found it. Along with not being admissible, certain evidence may come back to haunt you if violated the other party's right to privacy in order to find it. Based on these and other legal considerations, you should always consult an attorney if you are seeking court intervention for domestic violence or other serious issues. For more information on New Jersey's Court Rules and Rules of Evidence, please speak with the family law attorneys of Villani & DeLuca, P.C.