Law enforcement has been using digital evidence to convict criminals for many years. Computers have been searched. Illicit images taken without consent, credit card fraud, and identify theft are some of the most common digital or electronic crimes that have been discovered.
However, digital evidence isn’t only limited to cases like these. In family law, we commonly use such evidence in domestic violence, child custody, and alienation of affection cases to help show proof of abuse, neglect, or infidelity. Let’s explore the realm of digital evidence, what it is, and how it might apply in your case.
What is digital evidence?
The definition of digital evidence is any probative information stored or transmitted digitally that can be used by a party in a court case. Courts are reviewing and allowing all types of digital evidence, including financial information from bank and investment accounts, credit card statements, emails, text messages, word processing documents, digital photographs, GPS coordinates, social media accounts, internet browser histories, computer memory, and computer backups. The list goes on: it can include data from home security cameras, cell phones, tablets, laptops, and even smart devices like fridges and coffee makers.
Just like any other type of evidence, it must be accurate and reliable. The party who wants to use the evidence must prove that it is genuine and unaltered. If there is suspicion that data has been altered in some way, an attorney can contest the admission of that evidence with a motion to suppress (aka not allow that evidence). Just as witnesses while on the stand testifying must first take an oath that what they are saying is true, the same applies to any form of evidence. There are digital and forensic experts who can access a laptop, phone, or device and see the memory, deleted messages, emails, or any other electronic form of communication to assure that the evidence is legitimate.
Examples from real cases
Perhaps the most common cases that come to mind when thinking of evidence at all concerns criminal and fraud cases. As such, here are some famous cases where digital evidence has made a huge impact:
- Matt Baker, a former preacher in Waco, Texas, was found guilty of murdering his wife. He had used his computer to find articles on drug overdosing. He attempted to cover up the murder by faking a suicide note. He also gave his deceased wife’s cell phone to his mistress. The cell phone usage was a big clue that forced a closer look at this murder by suicide scheme.
- In Ohio, Ross Compton had his own heart and pacemaker used against him in an arson and insurance fraud case. His home was destroyed by fire, a fire that he likely set himself. Compton reported to investigators that he was asleep when the fire started. But, law enforcement reviewed his medical data, including his pacemaker’s records, and it was determined that he was not asleep when the fire started. He was actually saving possessions and pouring more gas on the fire.
- Serial killer Dennis Rader’s identity went undiscovered for over 30 years before his own messages were used against him. Rader, also known as the BTK Killer (Bind, Torture and Kill), killed 10 people in Kansas over a 30-year time span. He taunted police and would send them messages as to how he was getting away with his crimes. He eventually sent the police a message on a floppy disk, and digital forensic experts were able to finally follow the evidence and identify Rader after reviewing the metadata.
But, digital evidence is not just used to catch criminals. It is being used in all types of civil cases, including divorce. Experts are claiming that at least 1/3 of all divorces can lead back to some form of digital infidelity.
How does digital evidence work in family law?
Just like in criminal cases, digital evidence can be used in divorce or other family law matters and range greatly in the level of severity of these cases. You may possibly want to relocate out of state to an area closer to family with better schools for your children, which you’ve based on online articles you’ve read from respectable education publications. Perhaps you suspect your spouse of having an affair or believe they are leaving your children home alone during their custody time, but can’t access their location data to prove it. Maybe you are suffering from domestic violence and the only evidence you have would be on the password protected footage from your home’s security cameras.
If you have suspicions that there may be digital evidence that can prove your allegations, share that information with your divorce attorney. They can subpoena digital records. Deleted messages can be retrieved as well, but that window is short.
Also, keep in mind that you should avoid deleting messages yourself. When alleging something as serious as abuse or infidelity, some people may feel inclined to scrub their messages of anything that might make them appear to be at fault of anything themselves, thinking it might weaken their case otherwise. However, the destruction of evidence can lead to charges of obstruction of justice, especially if you lie and pretend you never sent or received a message in the first place.
Collecting evidence in a family law case
Talk with your attorney about how to properly access digital data. There are several tools now that are available to divorce lawyers. The Evichat app can gather text messages and review social media accounts. It was created by a divorce lawyer who was flooded with screenshots and printouts of messages. You can download this app if requested by your legal team.
There are other very similar apps out there. Two popular ones are Decipher Tools and iMazing. Both programs allow you to transfer messages and files from your phone to your pc or laptop. It can help with the organization of messages and the presentation. The proper use of these apps is extremely helpful in that screenshot after screenshot pictures can be avoided.
However, all evidence must be legally obtained. In other words, if you illegally obtain evidence against your spouse, that evidence cannot be used in court. This is a legal evidence rule colloquially referred to as the Fruit of the Poisonous Tree Doctrine. For example, if police enter a home without a search warrant and obtain evidence against an accused, that evidence or any other discovered evidence cannot be used against that accused person. Illegally obtained evidence cannot be used in criminal nor in civil cases. So, if you hacked into your spouse’s phone or laptop without their permission, it is not likely that you can use that information in court as evidence. Along those same lines, it is not permitted to use evidence that was obtained from a lucky guess for the password to access a spouse’s email or social media account.
If you suspect there is evidence on a device that you do not have access to, always consult an attorney. They can subpoena the information or discuss other legal methods for gathering evidence with you.
Be sure to work closely with your legal team so that the evidence’s authenticity will not be questioned. Even when evidence is overwhelming, the court will only want to review genuine and unaltered evidence – the truth and nothing but the truth.
