If you are either a pro se litigant or an attorney who has a case in the New York Family Court, you may be uncertain how the Family Court handles electronic evidence, such as emails, text messages, and Facebook instant messages at trial.
As a general rule, technology advances, particularly advances in digital data and devices, take place at a much quicker rate than does the recognition of new technology by the courts, especially state courts. Federal courts have historically been the first courts to deal with the evidentiary issues caused by emerging technologies.
Family law attorneys practicing today will definitely need to know about these rules. I have a memorandum of law prepared which I can present to the Family Court in advance of the trial if I suspect that the admissibility of my electronic evidence is challenged.
Nowadays, the use of social media posts and messages has become increasingly important in all kinds of litigation, especially litigation in the Family Courts. Lawyers who practice in family court must have working knowledge of emerging computer and internet technology, because electronic evidence and other digital data can be extremely useful both as direct evidence, and for impeachment purposes.
In the Family Court, electronic evidence is probably most frequently used in order of protection cases and child custody and visitation cases. It is also used fairly often in child support cases. It is much more difficult, and frequently impossible, to get evidence in the form of emails text messages, etc., when the communication is made between a party and a non-party, unless the non-party is called as a witness.
Interesting legal issues come up when dealing with emails or text messages between a party and a child or children.
When attempting to introduce electronic evidence, issues of relevance, probative value, foundation, and chain of custody must be kept in mind.
How NY Law Regarding Admissibility Of Electronic Evidence Has Evolved
Many years ago, if a party wished to introduce audio or video recordings in evidence at hearings or trials, he or she was required to retain an expert witness to examine the item and testify that the recording or video recording presented contained no gaps or alterations. In more recent years, the law regarding admissibility of all forms of “electronic” evidence has changed with the times and with the progress of technology and has eliminated this requirement.
These developments were surprising to past pundits, who, citing special effects in movies, where long dead people were “patched” into the movie, believed that even digital photographs would likely become inadmissible in court proceedings. However, in recent years, objections to the admissibility of photographs, tape recordings, videos, and various electronic communications like text messages, emails, and Facebook messages, have been rejected with courts finding that all these issues only go to the weight of the evidence, not its admissibility.
In the case of People v. Arena, 65 AD2d 182, the Fourth Department allowed the prosecution in a criminal case to put in evidence a tape recording of a conversation between the victim and the defendant with no foundation laid other than the victim’s testimony that he made the tape recording, and that the recording fairly and accurately represented the conversation between the two. The Fourth Department’s majority opinion held that no additional proof of the authenticity of the tape was required, other than the testimony of the person who made the recording.
It is significant that the court cited the cases of Boyarsky v. Zimmerman Corp., 20 AD 361 and People v. Higgins, 89 Misc.2d. 913,918, which involved video tapes and “moving pictures”.
Because Arena had a dissent, the case went up to the Court of Appeals, which affirmed the lower court and held that the testimony of the victim standing alone “was sufficient to support the recording be put into evidence in the absence of any indication that the tape had been altered”. People v. Arena, 48 NY2d. 944 (1979).
More recently, the authentication of evidence stored in electronic form was discussed in the case of People v. Moye, No. 2016-50669 (Supreme Ct. Queens County. 2016), which dealt with the admissibility of Facebook Instant Messages. Citing a slew of other cases, the Court stated that courts now treat electronically stored information the same as conventional types of evidence, and that such evidence can be properly authenticated with any evidence that is sufficient to support a finding that the matter in question is what its proponent claims it is, and this can be done circumstantially by appearance, contents, substance, internal patterns, or other distinctive characteristics of the evidence.
The Court in Moye also stated, citing two federal cases, that the burden of proof for authentication is not high, and in fact the court need only find that there is a reasonable likelihood that the evidence is what its proponent claims. Further, the court in Moye held that the proponent of electronic evidence does not have to rule out all possibilities inconsistent with authenticity.
Using these principles, the court allowed Facebook instant messages to be admitted into evidence which the complainant alleged had been sent to him by the defendant, based upon circumstantial evidence sufficient to “support a finding that there [was] a reasonable likelihood that the matter in question is what its proponent claims it is”.
Introducing Emails In Family Court
Emails are the easiest type of electronic evidence to introduce, and have been recognized by the New York Courts for many years. I remember many years ago there was a homicide case that got a lot of media attention. The defendant wished to present a defense that the victim had died during consensual sex and wished to introduce emails that showed that the victim was interested in BDSM activities.
The Court allowed the evidence, but only after the defendant brought in an expert witness from the Internet Service Provider who testified all about how emails are sent on the internet using packets.
Today I see very few problems in the introduction of emails if they are between the parties or sent by one of the parties. Emails from third parties who do not testify in court will probably not be admitted. I have also seen issues where the printout of the email looks on its face to be altered in any way or if it does not look like a typical email.
Due to various safety and security issues, there is a trend towards using encrypted email. However, to my knowledge, no New York court requires emails to be encrypted, even though it is well known that it is possible to “spoof” emails to make them look like they are coming from someone when they are not.
I had a client who took the emails and entered them into a different word processing program and then printed them out, and they did not look like emails. These were not admitted.
Admissibility Of Text Messages
While the Family Court is used to text messages being introduced in evidence, they are slightly trickier to introduce into evidence. I have found that it is often necessary that the printout that you seek to introduce has a date on it and has something on it that identifies who sent the text message. This could be a telephone number or an icon which has a picture of the sender. Sometimes the initials of the sender may suffice.
Because text messages are sent from phones, not over the internet, it is necessary to use screen shots of the text messages in order to get them in evidence. Because text messages are often part of continuous threads, if the screen shots are not taken correctly the required information may be lacking on one or more screen shots. Also, on some phones, when a text message is sent to someone else, the program used by the sending phone may strip the identifying information, including phone numbers and dates .
Admissibility of Facebook Instant Messages And Telegram
Telegram, which a lot of young people use nowadays, is just another type of text message. If you seek to introduce telegram messages, you should prepare your witness to testify that the document is a printout of a text message. Only if this is challenged will the witness have to explain what exactly Telegram is, and how it works. It should be noted that Telegram is now the most frequently used app worldwide.
Facebook instant messages are the subject of many of the seminal cases cited above. You can tailor foundation questions to the important facts cited in the Moye case, above. You will have to show some evidence that shows who was sending or receiving the Facebook IM’s, and may have to have some indicia in the IM itself that shows who was sending or receiving it.
There have been divorce cases where the Court has ordered one of the parties to turn over his or her entire hard drive to be examined by a forensic expert. This is rare, however, in Family Court.