As we see developing technology like cryptocurrency, 3D printing, artificial intelligence, we’re also going to see a rapid change in the types of digital evidence that can be presented to a court. This blog post covers what I believe to be the most prevalent currently, which is text messages for evidence in court and trials.
New Jersey Family Court Overview
New Jersey Family Court hears cases related to divorce, child custody, child support, spousal support, and more inside of the different types of cases the courts hear. You will soon learn that the court has many different divisions to hear these cases; most have their own specific division. There is a dissolution division, which is for marriages. It represents the dissolution of a marriage. There’s non-dissolution, which is obviously many things other than a divorce, which would typically include child custody and support from time to time. There’s also spousal support for people not wanting to get divorced, but I personally have a conflict with the way courts do it. I think it’s a misinterpretation of the law. It’s outside the scope of this post, so I’m not going to touch upon it here. But just so you’re aware, there is that issue.
Going back to the divisions, there’s also a domestic violence division and a children’s court division which generally handle DCP&P cases and similar matters. Fortunately, all of the divisions as well as all the county courts throughout New Jersey, unlike New York and Pennsylvania and many other jurisdictions, they all follow the same rules of court so that the information that I’m presenting today, as well as the information you may get online if it’s reliable, will be the same for every division and for every county that you go into.
Judicial proceedings, family court proceedings could be contentious and emotionally charged, restrict guidelines and procedures to ensure fairness inside of what we hope to be an equitable or fair process. The courts actually have promulgated or written and produced rules of conduct for litigants, rules of code and conduct for attorneys, and even for the judges. Now, they may not be the easiest to find, but usually, at least I know in the northern counties of New Jersey where I primarily practice, you’ll often see these posted on the walls, especially those that pertain to judges’ code of conduct. And I say this because I know many litigants are often extremely concerned about how to handle and speak before a judge if they are without an attorney or even those with an attorney answering questions. Litigants are often concerned that the judges will think of what they say or do inside and outside of court, and they’re generally very uncomfortable with this, what I call the the sign of authority that judges hold. So please know that judges also are held to a certain code of conduct regarding candor and fairness to litigants. Don’t be afraid to speak up if for some reason you feel those rights or that conduct is being violated.
Lastly, the primary goal of family court is to protect the best interest of children while resolving disputes between family members in a fair and equitable manner. The important thing to realize about this, and I find myself preaching on a soapbox to many lawyers and even judges, is that when they speak of the best interest of the children, the two most important words are best and children. Because people will often come into the case asking for a change, saying it’s best for the children when it’s really not. It’s either better for the parent or it’s good or better for the children. But arguing something is best for children is an exceptionally challenging standard to meet and often not really what is being advocated when somebody’s trying to change a custody agreement or court order.
Legal evidence in Family Court Proceedings
Types of evidence include oral testimony, written statements and documents, expert reports, physical evidence, and digital evidence. These can be all admitted as evidence in family court proceedings if they meet admissibility standards. Legal evidence and family court proceedings must be 1) relevant, and 2) reliable. Judges have discretion to exclude evidence that may be prejudicial even if it’s relevant. Given the high stakes involved in family court matters, strong and reliable evidence is crucial to obtaining a favorable outcome.
Now, regarding the types of evidence, there are many types of digital and well as other types of evidence. This is just a general overview. Don’t think because you’re trying to use something in court that may not appear on this list, that it doesn’t apply or can’t be used. Two, when you’re talking about admissibility standards, these are the basic rules, relevant, reliable, and authentic. Each one has a body of case law behind it to determine what is and isn’t relevant, reliable or authentic. Each one is equally as important. So if you happen to be presenting something on your own, you should do what you can to read up on these three different standards so that you understand them – at least the basic principles. Because what’s important is you’ll see when we talk about different specific rules and in a second, there are a lot of exceptions to the rules and a lot of ambiguity. Understanding the basic premise behind those rules and these specific three aspects, relevancy, reliability, and authenticity, will help you when you need to argue something that may not be clearly defined in a role that you want to admit something.
Lastly, it’s important to explain judicial discretion. Here, the judges have discretion to keep evidence even if it’s relevant, reliable, and authentic, if they think the probative value is outweighed by its prejudicial value, meaning it’s more harmful than helpful. This is hard to give an example. It’s sort of a case by case analysis. When it comes to family court matters, I have rarely seen a court prohibit an evidence piece from being admissible because they thought it was unduly prejudicial. This is more common in a criminal matter, but it still does apply to family matters. So you must understand that. And when we speak about rules of evidence, the principle rules of New Jersey court evidence is, um, article four of the New Jersey Rules of Court will help you better understand the relevancy, reliability, and authenticity requirements,
Text message Admissibility and Types of Text Messages
Text messages can be personal, professional or business related and can include conversations, photos, and other forms of communication. And the text messages also can be from different sources. As I mentioned at the opening, as technology develops, social media platforms are ever-changing and new forms of communication are constantly in development. You can use phone text messages like an iPhone. You can use computer screenshots if you have a Messenger app, iPad messages, or any other device that has a capability of exchanging messages. Even emails, although technically not text messages of course, but of a similar nature when it comes to the issues that we’re talking about here. The admissibility of text messages is determined again by its relevance, reliability, and authenticity and the context in which they were created. The use of text messages as evidence and family court proceedings can have a significant impact on the outcome of the case. So please pay attention to the following information, including the rules and cases that are mentioned, so that you can be best prepared if you are bringing these issues to a judge in your future.
Considerations for Admitting Text Messages as Evidence in New Jersey Family Court Proceedings
First, the court may consider the privacy rights of the parties involved when deciding whether or not to admit text messages as evidence. This will be significant if you have text messages that involve children that mention the names or addresses or locations of children. For instance, if they’re mentioning where they go to camp or where they happen to live. It may also protect if there are other parties being mentioned. There may also be communications between other parties. It could be text messages between the children and third parties. Third parties have the right to be protected from having their communications exchange in a family court, many of which are open to the public and could be viewed and to by other people
The party seeking to admit text messages as evidence must establish a reliable chain of custody to demonstrate the authenticity of these messages. This is very important when it comes to videos and other recording devices, which may be how you’re presenting a text message by a photo or a or video of that text message. Chain of custody basically means you need to be able to establish that has not been altered from the person who first created the message to the time and the person who’s presenting it in court. Now, that may be the same person if it’s your text message, or it could be your lawyer if it’s your text message. Then you have to establish that between the time that you made the message and the time you showed whatever it is that you or your attorney is presenting in court, it has not been altered in any way.
Text messages, as I keep saying, must be relevant and material to the issue being litigated in the case. The reason I keep repeating that is people often don’t understand what is relevant and material. If you are in family court, believe it or not, text messages showing somebody as a good or bad person’s probably not going to be relevant in most matters. There are exceptions, but generally speaking, when we speak about keeping in mind relevancy and materialities, because people often confuse issues of relevancy and try to admit things that are not relevant, which takes time away from the actual important issues and frustrates the process. And the best evidence rule, the court may require the original text message or a copy of the original to be admitted as evidence rather than a screenshot or printout. And that goes back in part to the chain of custody issue, but also to authenticity, which also is an important theme that we keep talking about. Having a snapshot doesn’t guarantee that the court is getting the full message that’s contained in that snapshot. It doesn’t prove that it hasn’t been altered. It also doesn’t usually include the entire conversation. So when you speak of the best evidence rule, that more often than not means the best source for the information being provided.
If you’re coming in with a photocopy of a picture of a text message, which I’ve had clients try to do, the photo copy’s going to be different because it took a photocopy of the picture. The picture may be of a lower quality than the original text. So now you’re three levels removed from the actual original piece, and the court may really want to see the actual device that the message is coming from. There haven’t been a lot of cases that have dealt specifically with the issue of text messages and admissibility in New Jersey because again, as far as law goes, it’s a relatively new concept. This text technology’s wide use has increased substantially in the last decade.
So, during a recent case New Jersey’s superior court expanded the admissibility of text messages as evidence in criminal trials. The court held that text messages can be admitted if relevant and authenticated even if they were obtained without a warrant. The decision has implications for both criminal and civil cases involving text message evidence. Most decisions that come down in the criminal part are still going to be binding to the other parts like the family part, the general equity part. Now what’s important here is this is coming from a superior court case, which is only persuasive in other superior court cases because the superior court is the court where trials are heard. So if you’re in a family court matter, you’re going to be in the superior court. There’s a higher court called the appellate division that reviews the superior court decisions. And if they are erroneous they will change the decisions and explain why the decisions by that court. The appellate courts are the ones that are legal and binding on the other lower courts like the superior court. So superior court decisions are useful when you’re in the superior court, but appellate court decisions are most important.
Common Difficulties with Admitting Evidence in Family Court
Admitting evidence in family court can be challenging. Common difficulties include proving authenticity, relevance, and hearsay exceptions. Family law attorneys are careful to evaluate the admissibility of evidence to ensure that it meets the court’s requirement and can be used to support their client’s case. This is even more important if you’re representing yourself. So issues you need to be concerned with, as we talked about a little bit when we talked about best evidence, is whether or not you want to bring copies or the original. Another significant issue is, how are you going to present this to the court? Are you going to have copies made? Do you have to pre-mark them?
A lot of judges are different. Following Covid, technology changed a lot. The court’s adopted electronic filing, they’ve adopted Zoom or Teams virtual meetings, and that in some ways complicated things like admissibility of evidence. That technology has also spilled over into a lot of court proceedings. There are often judges where if you’re trying to present a video, for instance, which again somewhat outside this topic, but digital evidence related, many will have you project it from one device to the court’s device and then play it through that device. So if you get there and you have a video on your phone, you may not be able to actually project it through a third party’s device like a Zoom meeting that the judge sets up.
In that sense, it’s usually best if you’re representing yourself to call the judge’s chamber, speak with the law clerk, and find out in advance if the court has any specific procedure for playing electronic evidence. Does it need to be pre-marked? And how will the court utilize it? And lastly, whether they want it in advance or not. Sometimes the courts will have you actually upload the evidence, especially if it’s electronic, before it begins. And finally, as I mentioned before, make sure that you have access to the entire conversation with regard to text messages. Often you’ll be submitting a screenshot which will capture just a portion of it, and that can be overly prejudicial. It will generally include the portion that you believe is important, and not the portion that you don’t want the court to hear. Judges understand that we’re going to be favorable in our own presentation, but lawyers and litigants alike should be prepared to present the entire conversation.
Implications of Text Messages as Evidence
Text messages can be powerful evidence. The use of text messages as evidence and family court proceedings can be powerful given their ability to accurately capture conversations and other communications. Judicial discretion is important. Ultimately, the decision of whether to admit text messages as evidence will rest with the judge presiding over the case. They will weigh the factors of relevance, authenticity, and reliability when making their ruling expert.
Legal assistance is the key, given the complexities of family law cases and the challenges associated with introducing evidence. It’s always recommended that parties seek guidance of an experienced family court attorney when pursuing legal options. Do a little bit of research, and certainly talk to any attorney that’s going to have to represent you and specifically ask if any of the text messages or other evidence that you may be seeking to admit is hearsay and whether or not there is an exception.
Lastly, contact The Micklin Law Group if you need legal assistance with a family matter in New Jersey. Our experienced attorneys can help protect your rights and guide you through the legal process.s
