Texts, Social Media, and More: Using Electronic Evidence in Court

– by Stevens & Day

In today’s world, much of the information we process comes to us electronically. We receive and transmit emails and text messages. We take pictures and videos with our smartphones. We post text and photos to our social media sites. In the legal world, this information/data is often referred to as “electronically stored information” or ESI for short, and it can play a major role in legal proceedings.

As technology continues to expand and grow, the use of ESI as evidence becomes more and more common in and outside the courtroom. While it might be readily apparent that ESI could be useful to a legal matter, it is not always apparent how to find, preserve, access, or present the information in a courtroom or other legal setting.

COLLECTING ELECTRONICALLY STORED INFORMATION (ESI)

What kind of electronically stored information is out there?

The most common sources of ESI include:

Personal computers – Your desktop or laptop computer may contain stored photos, videos, and emails that could be important to your case. Your browser history, which is a list of which webpages you have visited and when, may also be relevant.

Smartphones – Smartphones can hold nearly everything a personal computer can (photos, videos, emails, browser history, etc.), plus text messages and call logs.

Social media platforms – Social media sites like Facebook, YouTube, Twitter, and Instagram are all great sources of electronically stored information.

Video surveillance – This form of ESI is common, but not always the first thing that comes to mind. The most familiar form of video surveillance is security footage inside or outside public buildings, like banks or gas stations. However, with the development of mobile devices and smartphone applications, other forms of video surveillance have become increasingly popular. Nowadays, many private residences are hooked up with video surveillance on their front porch or around their home that the user can access from anywhere using a smartphone application.

Dashboard cameras – Like home video surveillance, dashboard cameras have also become more prominent in commercial and personal motor vehicles.

Traffic enforcement cameras – Even local governments are hopping on the ESI trend. While traffic cameras have been around for a few decades, traffic enforcement cameras, which generally record higher quality footage, have become more prevalent in order to better enforce traffic laws such as speed limit enforcement, stop sign enforcement, and bus lane enforcement.

ADMITTING ELECTRONICALLY STORED INFORMATION (ESI) AS EVIDENCE

 So, say you have ESI that is critical to your case. How do you properly present that information in court?

There are a few key things to consider when trying to admit ESI into evidence:

Relevance – The ESI you are trying to admit must be relevant, which means it must make a material fact of your case more or less probable.

Authentication – You must be able to prove that the ESI you are admitting into evidence is what you’re claiming it is. Generally, this is done by having someone with knowledge testify about the ESI.

Best Evidence Rule – Generally, an original writing must be offered into evidence to prove its contents. Thankfully, for ESI, any printout that accurately reflects the information will be considered an original. For photographs, an “original” can include a negative or a print. The Best Evidence Rule applies when the evidence sought to be proved is a writing and the contents of that writing are at issue. If the Best Evidence Rule applies, you must either offer the writing into evidence or show that you could not obtain the writing before you can offer secondary evidence in the form of witness testimony.

Hearsay – Hearsay comes into play when a party is offering a statement into evidence that was made by another person to prove that what was said in that statement was true. While the court will generally not admit hearsay into evidence, there are some exceptions to the rule. Common exceptions are present sense impressions, excited utterances, and statements of recorded recollection.

Probative Value – The court has the authority to exclude any evidence if its probative value is substantially outweighed by a danger of undue prejudice. “Undue prejudice” means any undue tendency to move a jury to decide an issue of your case on an improper basis.

Completeness – If only a portion of a written or recorded statement is offered into evidence, the court will not exclude it from evidence solely because the complete statement was not offered. However, an adverse party may seek to introduce the remaining portion of the statement in order to place it into context.

It may seem daunting to collect and prepare electronically stored information for your case, but an attorney can help you navigate this difficult process. If you or a loved one need help pursuing a claim where you think ESI might play a role; or if you are an attorney looking to consult someone with experience regarding ESI, please feel free to contact attorney Dan Stevens at DStevens@StevensDayLaw.com or attorney Laura Pioch at LPioch@StevensDayLaw.com or call our office at 207-430-3288.

Contact Stevens & Day, LLP

82 Winthrop St.,

Augusta, ME 04330

207-430-3288

207-624-0399

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