People with cell phones are everywhere we go. Bystanders record parking lot altercations, conversations with service workers, disputes between neighbors, and more every day. In some cases, people may even record conversations in their own homes. As a result, cell phone evidence is often at issue in domestic violence cases, whether used by the prosecutor to prove a case against you or by your attorney in your defense.
Admissibility of Cell Phone Evidence
In determining whether a video is admissible, the court will ask several questions, including:
1. Is the Video Relevant to the Case?
Any evidence used in your defense or prosecution must be relevant to the case at hand. However, a judge will often give the defense a wide berth in determining whether a cell phone video is relevant to a criminal domestic violence case. A video may be relevant if it helps to explain any element of a crime or its defense or to support or attack the credibility of a witness.
2. Did the Parties Consent to Filming?
In many states, including New Jersey, a video filmed in public doesn't need the parties' consent. However, the case may be different for recordings made in private or where the parties have an expectation of privacy. New Jersey is a “one party consent” state regarding audio recordings, meaning that at least one party must know and approve of recordings. Under New Jersey's Wiretapping Act, a third-party recording a conversation without the knowledge and consent of at least one person is illegal and may be inadmissible to support the defense or prosecution of a domestic violence case in many cases. See N.J.S.A.§§ 2A:156A-2, -3, -4.
3. Is the Video Authentic and Unedited?
In 2022, it's easy to edit videos. And it's not just “deep fakes” that can be a problem. Fortunately, creating a fake video from nothing is not always easy. However, even dropping a few frames from the middle of a video, or removing the beginning or end of an incident, can drastically alter how people viewing a video will interpret the events surrounding them. Your attorney will question the video recorder to establish authenticity but may also need to employ expert witnesses to ensure a video is unedited.
4. When Did the Recording Start?
Most videos recorded by bystanders in public tend to pick after the events at hand have already started. In some cases, not having the video of those first few minutes can dramatically change how we perceive the recorded events. As a result, the court will consider this in determining whether a cell phone video is admissible at trial. Even if the video is admitted with the beginning or end not included, your defense attorney may address the events not shown on video during cross-examination or your defense at trial.
5. Do Any Factors Affect the Perception of the Video?
Often environmental or technological factors can affect how we perceive cell phone videos. Camera angles can change our perception of height, the color of clothing, and even distance and speed. If the video quality is poor, the lighting too low, or conversations are not fully audible, the video may not be admissible.
Hire an Experienced New Jersey Domestic Violence Defense Attorney
If you're facing domestic violence charges in New Jersey, you need experienced legal guidance to protect your rights through the criminal justice system. Attorney Joseph D. Lento and the experienced team at the Lento Law Firm have been helping domestic violence defendants for years. Find out how they can help you too. Contact the Lento Law Firm online or call them at (888) 535-3686 to set up a consultation.