Rarely are legal processes ahead of technological innovations. Nowhere is this more apparent than in domestic violence trials where text messages, emails, social media messages and audio/visual information are often important to the outcome. However, most of this information is typically contained on a mobile phone or tablet. How does such information make its way from the device to the court record?
In an important decision for lawyers and litigants, the Hon. Lawrence Jones of the Superior Court of New Jersey in Ocean County recently issued a comprehensive opinion on this topic. In E.C v. R.H. Judge Jones explored the history of electronic communications over the past decade, referring to such information as “a component of routine everyday life” and “pocket-size file cabinets.” Judge Jones noted, however, that the New Jersey Rules of Evidence have struggled to keep pace with technological developments and that “Courtroom rules, procedures and protocols were simply not initially drafted with cell phone technology in mind.” The case before Judge Jones involved allegations of domestic violence in the form of cyber-harassment through email, text message, photograph, etc. All of this essential information was stored on a mobile device. This is the crossroads where technology and evidence law met.
When a litigant attempts to offer into evidence images on a mobile phone, it is impossible to preserve a specific image for the record. The problem is that only small portions of documents may be visible at one time which makes it very difficult to consider the totality of the document, to view and compare messages when the screen has no room for such a feature. Due to the layout of most courtrooms, it is impractical to view such information at the same time thus leading to the cumbersome passing around of the device and the risk of deletion. With regard to audio recordings, is often difficult to hear the exact words after one review. At the conclusion of the case, how does the Judge even review such information as part of his or her deliberative process?
Judge Jones’ decision in E.C v. R.H. is a well-reasoned effort to overcome these difficulties by requiring that if one intends to introduce cell phone evidence at trial, such evidence should also be made available to the Judge and the other party in “tangible and organized, duplicate hard copy form” in advance. Thus, emails, text messages and photographs must be duplicated on paper, and audio and video recordings must be duplicated on CD or DVD. These items should be pre-marked for identification and preserved as part of the record. This process would avoid confusion and provide the other party with an opportunity to review the information in advance, as in the case of more traditional evidence.
In E.C v. R.H. Judge Jones adjourned the trial for one week so that such copies could be made, distributed and available at trial. His decision is a sound, practical solution to a vexing issue and should be applauded by lawyers and litigants alike.
If you or your family is experiencing a domestic violence situation, it is recommended that you consult experienced legal counsel.