How to Use Information on Smartphones in Court

 Posted on May 19, 2016 in Criminal Defense

An overwhelming majority of adults own cellular devices. They are now ingrained in every facet of daily life. Our cell phones essentially do it all, from social networking, using a calculator, alarm clock, or calendar, to making phone calls and emails and getting directions on a GPS, or communicating via text message. Because we rely so heavily on them, it is only reasonable that, in certain situations, evidence that you need is contained in that device. Can we use that information in as defense in a criminal case? The short answer is yes we can.

How Does It Work?

The first step is to save the information. Screenshots of social media posts, copies of text messages, as well as any email communication is all a part of the evidence that you could potentially use. The first step is to email them all to yourself--not just what the other person said, but also what you said. The entire conversation or incident is required to show what occurred. Email them to yourself and perhaps a friend, family member, or lawyer that you trust to have several copies of your evidence.

Next, you will need to authenticate the evidence, or prove that everyone is who you say they are. For instance, in a social media screenshot, include the picture of who posted. If necessary, go to their profile page and capture more information. Text message evidence can be authenticated in several ways, including:

• The other party admits to sending the texts;
• A witness saw the texts being typed and sent;
• Characteristics of the message itself;
• Circumstantial proof; or
• “Reply authentication”, the reply is deemed authentic because it is obviously and undeniably in direct response to the text message before.

Once you have evidence and storage taken care of, you will want to start overcoming “hearsay” arguments. Unfortunately, it is the nature of the beast, but it is possible to overcome them, and even easier if you have completed the previous two steps.

Can Police Use the Evidence?

Yes, if the police are able to legally obtain the information, it is possible that they can use it. Last year, the National Policing Improvement Agency put mobile phone evidence at the top of their list of skills to master. A course was introduced and 3,500 police officers are expected to complete this course each year. They may be able to access information that you would not even tell your closest friend, including where you have been, with whom, for how long, and more. It can make or break a criminal case.

Access, however, is the difficult part. Police are only able to take your phone if there is reasonable suspicion that a crime was committed. Once they get the phone, they may find more evidence to strengthen their claim, but they will be required to obtain a search warrant to access your information. Even if you have been arrested, the U.S. Supreme Court has ruled that you are still entitled to your Fourth Amendment right, which protects you from “unreasonable searches or seizures,” especially as it pertains to your cell phone.

Know Your Options

Assuming the police do get your phone and find evidence that may be damning in court, it may not be the end of the world. In cases involving GPS information that allegedly places you in a certain area at a certain time, for example, a good lawyer will be able to show that location services are not 100% accurate. Occasionally, a cell tower may be at capacity and your signal would need to “bounce” off of another tower. Sometimes, the location feature may be completely scrambled and you may bounce off of a cellular tower in another state.

If you are currently under investigation for a crime and police want seize your phone for evidence, do not hesitate to call a lawyer to help you. Also, if you are going to court and you have evidence that can help your case in your phone, an experience lawyer will be able to obtain that evidence and use it effectively to achieve a positive outcome. If you have questions about the use of cell phone evidence or are in need of an honest and reliable Santa Cruz, CA criminal defense attorney, the office of John W. Thornton, Attorney at Law will be able to help. Call us today at 831-426-5800 for your free consultation.

Sources:

http://www.newyorker.com/news/news-desk/what-your-cell-phone-cant-tell-the-police

http://www.huffingtonpost.com/2013/08/12/police-seize-cellphone-evidence_n_3739770.html