Due to the growth of technology and the increasing amount of information that is stored via technology, digital evidence has become especially relevant in court cases. Based on the prolific use of digital evidence, our experienced trial attorneys here at Handelin Law put together a short guide for you to better understand how digital evidence can be used at trial.
What is Evidence?
Trial evidence comes in two basic forms – direct and circumstantial. Direct evidence is directly related to the issues – documents, eyewitness accounts, party admissions, etc. Circumstantial evidence is evidence that is not drawn from direct observation or verification of fact, but rather circumstantial evidence relies on an inference to connect the evidence to a conclusion of fact. As such, digital evidence can be either.
Is it relevant?
As with all evidence, there are a couple of requirements for digital evidence to be considered evidence. First, it must be relevant. Relevant evidence, as set forth in Federal Rule of Evidence (FRE) 401, is evidence that “(a)…has any tendency to make a fact more or less probable than it would be without the evidence, and (b) the fact is of consequence in determining the action.” A relevant piece of evidence, for example, can be web history or text messages that help prove or disprove someone’s case.
Is it authentic?
Once the evidence is determined to be relevant, the evidence must be authenticated. To authenticate evidence, courts use rule FRE 901, which requires a proponent of the evidence to produce evidence sufficient to support a finding that the item is what the proponent claims it is. This can be done by discussing contacts of a phone or other testimony or facts that corroborate that the evidence is what is it is purported to be.
Emails are common forms of digital evidence. Of course, though, there are a few requirements. The email needs to clearly identify who the sender is and who the recipient is, as well as the time and date the email was sent. If an email thread is being used as digital evidence you may confirm the authenticity, by allowing the author of the email to testify to the court that they wrote that email to the recipient. The authenticity of an email can also be proven by a witness testifying the author is the real author, and the witness was there to watch the email be written or sent.
Text messages are also a very frequent piece of evidence used in trials. They are more difficult to prove authenticity; there must be proof that the message came from the person from a device they had control of. The text messages need to show what device the messages came from and where it was sent. Circumstantial evidence may be used to prove the person could have sent the message from the device.
Time is an important factor for social media; social media sites are constantly changing. The court will need to know the exact time’s information was retrieved. IP addresses are vital information because social media accounts are not connected to a single device. Some social media may be difficult to authenticate because it can be difficult to prove authenticity due to accounts being hacked, using different names, and creating fake accounts.
Handelin Law’s experienced trial attorneys have used digital evidence many times in past cases and understand the process. Schedule a consultation with us today online, or give us a call at 775.882.8032.