Domestic Violence – Getting Texts into Evidence

Domestic violence cases are inherently evidence-dominated hearings. Evidence issues have recently become a hotly debated topic, specifically, what steps the court should take when admitting data stored on cell phones into evidence.

The root of this issue begins with the progression of technology. Through ­N.J.R.E. 201, New Jersey Courts have acknowledged the ever-increasing use of electronic communication in every day life. However, courtroom rules, procedures, and protocols have not yet caught up with changes in technology. These changes pose problems for pro se litigants, and experienced attorneys alike.

New Jersey statutes are quickly catching up to crimes stemming from technology. In 2014, the New Jersey Legislature amended the harassment statute, adding “cyber-harassment” to cover cases of harassment through electronic devices or social media. N.J.S.A. 2C:33-4.1. Furthermore, harassment is the most common form of violence reported under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-19. Harassment is an offense predicated upon unwanted communication, and technology such as cell phones only increases the ease of committing such an offense. With cell phones allowing instantaneous means of communication, how should courts consider evidence stored on cell phones to substantiate allegations of harassment?

In the recent case of E.C. v. R.H., which took place in Ocean County Superior Court, one party alleged she was being harassed via means of electronic communication, specifically through text messages she had stored on her cell phone. She wished to introduce these text messages into evidence, and the Court was reluctant to accept them simply off a visual inspection of her cell phone. The Court stated six specific reasons for their reluctance, ranging from preservation of the evidence, visibility issues due to small screen sizes of cell phones, physical courtroom layouts, accuracy issues, clarity issues, and availability of the evidence to be reviewed once the trial ends.

When admitting evidence stored on cell phones, new rules must be followed. All e-mails, text messages, social media messages, or photographs stored on cell phones must be printed on paper. All audio recordings or video recordings stored on cell phones must be duplicated onto C.D. or cassette, or onto DVD. In E.C. v. R.H., the Court adjourned the proceedings for one week to allow the parties to comply with the new rules.

These new rules will help to remedy evidence issues in the courtroom. Additionally, these rules will help to prevent delays in trial, and will enable parties seeking protection from domestic violence to conclude their cases more expeditiously. The attorneys at LaRocca, Hornik, Rosen, Greenberg, and Patti are ready and able to help solve any technological concerns when preparing for trial, so that evidentiary problems are never an issue.