Edward R. Weinstein, Esq.

Texting, Harassment and New Jersey’s Prevention of Domestic Violence Act

As an attorney who has handled countless restraining order trials, it is my legal opinion that cell phones have been a true game-changer with respect to the landscape of New Jersey’s Prevention of Domestic Violence Act. As I and the experienced attorneys ay my law firm all embrace, cell phones can contain valuable evidence in the form of text messages, e-mails, and voice-mails that can make or break a vast majority of final restraining order trials. Still there are strict rules about evidence and whether it is admissible in a New Jersey Family Court and how evidence must be presented. The recent case of E.C. v. R.H. tackled the issue of how electronic information stored on cell phones should be presented in a court of law.

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In E.C. v. R.H. , Judge Jones, Family Part of the Superior Court of New Jersey, Ocean County, explained what should happen at a final hearing when a litigant presents evidence directly from his or her phone such as texts, e-mails, social media messages, or audio/visual evidence.

E.C. and R.H. dated for some time. E.C. contended that R.H. had been harassing her by sending her numerous unwanted text, social media messages, and a number of voice mails littered with profanities and upsetting derogatory comments. All E.C. wanted was for R.H. to leave her alone and so she asked the court to enter a final restraining order to protect her against him.

August 11, 2015 was the originally scheduled date for the final hearing. At the beginning of the hearing, E.C. expressed her desire to introduce evidence store on her cell phone of multiple communications that she alleged were harassing. The trial court was left with the question of how to appropriately accept evidence from E.C.’s cell phone into the court record.

The court started its legal analysis by noting that according to New Jersey Rule of Evidence 201, electronic communication has become a routine component of everyday life for most Americans over the past decade. As smartphones become more portable with ever-increasing storage capacities, people can easily keep electronic communications, scanned documents, photographs, audio recordings, and video streams in high volume. People can conveniently carry this information wherever they choose to go like pocket-sized file cabinets. However, while someone may commonly rely upon potential evidence stored on a cellphone, New Jersey laws of evidence and civil procedure have struggled to adequately keep up with the rapid pace of technological advancement. The courtroom rules and procedures were created long ago, and were not drafted with cell phone technology in mind. Consequently, some of the traditional methods of introducing evidence into court did not contemplate the specialized needs and practical problems that might arise when a litigant comes to court and seeks to introduce evidence stored directly on their cell phones.

The problems of cell phone evidence arise very commonly in domestic violence disputes. These disputes are often expedited summary proceedings that often times involve self-represented litigants with little to no legal training. More often than not, cell phone evidence, especially stored text messages and e-mails, address the heart of a either a victim’s claim of harassment, or the other sides defense to the same.

There is a broad ranges of identified forms of violence under the Prevention of Domestic Violence Act, New Jersey Statute 2C:25-19, et seq. Out of all the numerous forms of violence, harassment is recognized as the most common and frequently reported predicate offense for a finding of domestic violence. According to New Jersey Statute 2C:33-4(a), harassment is primarily a communication-based offense. Harassment is defined to occur when one person, with a purpose to harass, causes to be made a communication: anonymously, or at extremely inconvenient hours, or in offensive language, or any other manner likely to cause annoyance or harm. The New Jersey Legislature amended the harassment statute in 2014 to add the act of “cyber-harassment” to cover instances when one attempts to harass another through an electronic device or social networking site.

Logically, the ability to quickly and seamlessly send electronic messages, increases the likelihood of harassment. Furthermore, electronically stored evidence might also be incredibly pertinent in illustrating the nature of the prior relationship. According to the paramount New Jersey Supreme Court case of Cesare v. Cesare, the prior relationship between the litigants is relevant in analyzing whether some acts of the harassment constitute domestic violence, or warrant a restraining order. Therefore, consideration of prior communications between the parties is not just permitted, but sometimes exceedingly material. In the 2005 case of Pazlenza v. Camarata, the Appellate Division held that in an effort to determine if an alleged perpetrator’s past conduct represents an intent to harass and cause required annoyance or alarm to the alleged victim under the Prevention of Domestic Violence Act, the past conduct toward the alleged victim and the history of the relationship may be taken into account.

In E.C. v. R.H., the victim alleged ongoing harassment via recent unwanted and threatening messages. The Superior Court found that the substance of the recent, ongoing electronic communications between the litigants might be relevant in illustrating the parties’ actual relationship. Therefore the court found that this alleged recent communications between the parties stored on a cell phone, might have an appropriate place in the hearing, in illuminating both the alleged predicate act and the nature of the past relationship between the two. Furthermore, E.C. came to court with no substantial knowledge or past experience with New Jersey’s Rules of Evidence and Civil Procedure. She honestly held the belief that all she had to do was show the judge the information on her cell phone to adequately introduce the same into the evidentiary court record. Litigants in the same position as her may not know, or have and prior reason to know, the logistical and procedural problems of trying to use cell phone evidence at a domestic violence final hearing. Still, the judge found that several problems existed.

The judge noted that when someone tries to enter images on a cell phone screen into evidence, it is almost impossible to preserve that specific image for the record, without also having a hardcopy printout of the same image as well. Without preserved hardcopies of evidence difficulties may arises in future review at trial or the appellate level. It would also be difficult to prevent inadvertent or intentional deletion, or modification. Furthermore, it would present challenges to both parties to view all evidence on a cell phone at the same time, compared to viewing duplicate printouts of the same document. Evidence needs to be identified and preserved in tangible form as part of the record. Hard copy forms of electronically stored evidence give the other party a fair opportunity to review the evidence. If the court wanted to review the evidence again after the close of testimony, the court would not be able to do so without a hardcopy of the same evidence. The court found that emails, texts, social media messages, and photographs should be printed on paper. Audio recordings should be duplicated on CD or cassette, and video recordings should be duplicated on DVD.

One goal in a domestic violence case is that each party be afforded the opportunity to present relevant information in a fair, practical, and time-efficient way. New Jersey Rule of Evidence 611 notes that the court ultimately exercise reasonable control over the mode of presenting evidence. This is to make the presentation of evidence effective for the ascertainment of the truth and to avoid a waste of time. Domestic violence cases flood court dockets so efficiency is especially important. Therefore the Superior Court found it fair and equitable to adjourn the final hearing for one week. Both E.C. and R.H. were instructed to bring three duplicate hard copies of any evidence they wanted to introduce.

Please contact my office today if you or a loved one has faced a similar situation to learn how we my help you.