This section on digital evidence explains different types of digital evidence and what a person with digital evidence in his/her case should consider before court.
What is digital evidence?
Digital evidence is information that is stored on, received, or transmitted in a digital format by an electronic device that can be used in court to help prove abuse occurred. Digital evidence is sometimes referred to as electronic evidence. This evidence is often created when abuse involves the use of technology. Here are a few examples:
- when an abusive person sends text messages that contain threats, those messages (or screenshots of those messages) become digital evidence that can be used in court to help prove the threatening behavior;
- when an abusive person creates harassing posts on social media, those posts (or screenshots of those posts) become digital evidence that can be used in court to help prove the harassing behavior; or
- when someone uses technology to stalk a victim, there may be evidence in the form of GPS tracking data, video footage, or spyware purchases that can be used as evidence to help prove surveillance occurred.
How is digital evidence different from other types of evidence?
Digital evidence is different from other types of evidence that you may want to use in court, such as printed pictures, testimony, and other types of official records.
One difference is the actual format of digital evidence, which would be in electronic data files. These files are most commonly found on mobile devices and computers, or stored in online accounts. Therefore, you will need to think through how to present it in a format that the judge will be able to examine. For example, if your evidence is located on your cell phone, and the judge needs to keep your evidence as part of the court record, you would want to think about how to get your evidence printed from your phone or in some other format that the judge can keep (so that the judge doesn’t keep your phone).
Another difference is that digital evidence can be easily changed, damaged, or destroyed, so it is important to protect the data. This may be done by creating backup copies that are saved to a second device, taking screenshots and emailing them to yourself, and updating account passwords.
What should I do to prepare for my case if it involves digital evidence?
What you should do in your individual case will depend on your state’s rules of evidence and the type of abuse you are experiencing. However, here are some things you may want to consider:
- Find out how to get your evidence. You may be able to get your evidence directly through your own accounts or you may have to request that a third party (such as a telephone company) provide you with the evidence you need.
- Save the evidence. You can learn more about what needs to be saved and how to best save it in our Documenting/Saving Evidence page.
- Take pictures, screenshots, or printouts of any evidence that is on your phone or table that you want to leave with the judge. If your evidence is only on your own telephone or tablet, you may be required to leave it with the judge until your hearing is over if you don’t have it printed out or saved in another format.
- Think about the testimony you plan to tell the judge and how your evidence fits with your testimony. In order to “admit” (enter) evidence in court, you will likely have to testify (“lay a foundation”) about:
- how you came upon that evidence; and
- how you know that it is the abuser who sent the messages, posted the social media posts, etc.; and
- Check with a lawyer in your state if you made a video or audio recording to capture evidence of the abuse. In some states, it may not be legal for you to record a conversation if the other person being recorded doesn’t know about it. You can also read more about recording laws on our website.
Again, it is helpful to work with a lawyer to prepare for a court hearing or get legal advice about what you may be able to use in court.
Will I be able to get my digital evidence into the court record during my hearing?
Maybe. Each state is governed by what are called "rules of evidence." Your state can have its own rules or the state may follow the Federal Rules of Evidence (which are general rules that are followed by many states). The rules generally address what is allowed as evidence in court and deal with issues such as:
- exceptions to the rule against "hearsay;"
- what types of documents may have to be certified in order for them to be admitted into court during a trial;
- what types of questions a witness can answer when testifying; and
- other topics.
The rules of evidence allow judges to only consider specific types of evidence, so whether you can have your digital evidence admitted into the court record during your hearing may depend on what your state’s rules of evidence say and what the judge decides. You can find lawyers in your state on our Finding a Lawyer page if you want to get legal advice about how to present evidence in your case.