This case was a typical situation. Plaintiff and Defendant were dating previously, Plaintiff now says that Defendant has been harassing her by sending her many un-wanted text messages and social media messages and voice mails. These are filled with profanities and derogatory and upsetting comments. She wants to be left alone and wants a Final Restraining Order.
Plaintiff brought her phone to trial, and wanted to introduce into evidence the contents of her cell phone. The question is how to appropriately accept evidence from a cell phone into the Court record.
The problem is obvious. The Rules of Evidence and court procedure have not kept up with modern technology. The evidence on the cell phone could be extremely important, could clearly show, one way or the other, what has taken place. Multiple cell phone text messages, e-mails, voice mail messages could show offensive inappropriate and harassing communications by the Defendant. Not just the recently sent materials, but much older communications could help the Judge to decide whether or not the Defendant is harassing the Plaintiff.
The problem is how to get the evidence out of the cell phone and into the court room.
First, there must be some way to preserve the image on the cell phone, so that the Defendant can see it in court, and so that there is a record of what was shown to the Judge, permanently kept in the Court’s case file. Simply having the Judge look at the cell phone, letting the Defendant look at it briefly, and then handing the cell phone back to the Plaintiff will not be enough.
Second, a cell phone has a very small screen and it is only possible to see a small portion of a document or a picture at one time. It is difficult for a Judge to read lengthy information from a cell phone screen, piece by piece. It will be equally difficult for the Court to review and compare various messages side by side. The cell phone screen is simply too small for this. If there is a continuing series of messages back and forth, the Judge will end up looking at one part of one message at a time, and scrolling up and down and up and down. This is time consuming, and likely to cause mistakes.
Third, the procedure of letting the Judge review material on the cell phone prevents the Defendant from seeing and understanding what the Judge is looking at. This is not fair. The Defendant must be able to see what the Judge is looking at, what is being produced as evidence. That is basic fairness in any trial.
Passing the cell phone back and forth between the Plaintiff and Defendant would take a great deal of time, and cause other problems.
Fourth, if one party reads a text or e-mail into the record, and the other party does not have a hard copy to simultaneously read and follow along, there is no way to check the accuracy of what is being said.
Fifth, as far as voice mails, it is difficult sometimes to hear exactly what has been recorded. A compact disc recording or a transcript would make it possible to preserve what has been said on that voice mail.
Sixth, after the parties finish testifying, the Judge might want to review carefully all of the messages and other items put into evidence. If no hard copy is printed out, and there is nothing except the Plaintiff’s cell phone available, the Judge will not be able to review the evidence.
The Judge in this case decided that for future cases, both parties should be told ahead of time that they will have to print out onto paper all e-mails, texts, social media messages and photographs. Audio and video recordings should be duplicated onto a disc.
The Judge then concluded that in many Domestic Violence matters neither party has a lawyer and very often they do not know what is required to prove their claim, or defend a claim. All parties to a domestic violence case have to be informed ahead of time that they should print out all text messages, e-mails and other cell phone materials, onto paper, and bring three copies.
I suspect that in many, many cases, Judges will end up telling the parties that they must print out the cell phone contents, and then adjourn the case for one or two days to allow this to happen.
In some cases, neither party has the money to be able to print out all of the evidence. It does cost some money to print out cell phone contents onto paper, and many people who end up on domestic violence court simply do not have a computer printer available, or the resources and money to get the job done. The Judge concluded that in some cases, the Court could decide to dispense with hard copies of some of the materials or even most of the materials. Instead, the Judge could describe carefully what the items are that appear on the cell phone. However, in the ordinary circumstance, the person who wants to come to court and prove their case from the cell phone, must print out that material onto paper, and show that plus the cell phone to the Judge at trial.
I have handled many domestic violence trials. What this judge is describing in this case is absolutely typical. The Judge’s solution, and his analysis are absolutely spot on and correct.
If you face a situation like this, it would be very smart to print out your evidence ahead of time, and have three copies available, plus your cell phone. You give one copy to the Judge, one copy to the Defendant, and one copy for yourself to look at while testifying. What takes place in Domestic Violence Court is extremely important, and may save the Plaintiff from serious injury or harm from the abuser. The results are also extremely important to the Defendant, who is being accused of domestic Violence. It is very important to be well prepared when going into court on one of these matters. Of course, a good lawyer can help a great deal.