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Cell Phone Evidence in Domestic Violence Proceedings

In the case of E.C. v. R.H, plaintiff alleged defendant had been harassing her by sending her many unwanted text and social media messages, along with voicemails, filled with profanities and derogatory and upsetting comments. At the start of the hearing, plaintiff wished to introduce evidence of multiple allegedly harassing communications stored on her cell phone. Plaintiff's request was not uncommon. Litigants in domestic violence matters often seek to introduce evidence on their cell phones but questions always arise as to how to properly introduce the evidence into trial. E.C. v. R.H. noted that our laws of evidence and civil procedure have struggled to adequately keep up with the fast pace of technological advancement and as a result, some of the more traditional methods of introducing evidence into court do not address the specialized needs and practical problems that arise when parties come into court and seek to introduce information stored on their cell phones directly into evidence, such as texts, e-mails, social media messages, or audio/visual evidence.

In examining the question of how to appropriately accept evidence from cell phones into the record, the Court highlighted several problems with introducing the actual cell phone into evidence:

1. When a litigant attempts to offer images on a cell phone screen, it is impractical if not impossible to preserve that specific image for the record, unless there is a hard copy printout of the image as well.

2. A cell phone is by definition small, with an even smaller screen. Consequently, only small portions of documents may be visible viewable at one time, often creating reading challenges even after on-screen enlargement. A court attempting to read lengthy information on a cell phone screen might have to continuously scroll upward or downward to see other parts of the same document.

3. Due to the general physical layout of most courtrooms, it is impractical for the court and both parties to view evidence on a cell phone at the same time, as compared to viewing duplicate hard copy printouts of the same document. This process may then have to repeat itself for viewing each and every document or different portions of the same document, constituting a procedure which is could slow down the trial itself and create a repetitious, pass-around-the-phone process.

4. If a party orally reads the text or email in to the record, and if the other party and the court have no available hard copies from which to simultaneously read and follow along, there's is no guarantee that the oral recitation is accurate. Further, this could be time-consuming and confusing if there are multiple lengthy texts and emails between the parties from various past relevant dates and times.

5. It is often difficult to hear the exact words of an audio recording.

6. If after the close of testimony, the court wishes to review all electronic cell phone evidence as part of the process of judicial deliberation, the court is practically unable to do so without the benefit of hardcopy forms of such evidence as the parties will take their cell phones with them.

The Court suggested that the above issues could be mitigated if the evidence is made available in tangible and organized, duplicate hard copy form for potential use at trial in the following forms:

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 CD or cassette

E) Video Recording            duplicated on DVD

In keeping with its suggestions, the Court adjourned the domestic violence final hearing for one week. He instructed the parties that if either wanted to introduce evidence which was stored on his or her cell phone, he or she should have tangible hard copies of such evidence for the court, with courtesy copies for the other party, available by the next court date. Although the adjournment extended the scope of the domestic violence proceedings beyond ten days, the court found it "fair and appropriate" under the circumstances to efficiently move the case along and potentially obviate the need for further adjournments, while helping both parties prepare and achieve trial readiness by the next scheduled hearing date.

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