Get off of your phone! Your electronic communications can be used against you in the future.

State v. Hannah, NJ Appellate Division Decided December 20, 2016

Get off of your phone, stop Facebooking, stop texting, stop tweeting, stop sending Instagram photos. You could be in trouble if you don’t and what your electronic communications can be used against you in the future.

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

The New Jersey Appellate Division ruled today that photos, text, Instagram, tweet, and all other means of electronic communication from one person to another, can be authenticated in a court of law merely by testimony from the person who sent or received they communication who has knowledge of the sender, the receiver, the contents of the conversation, and the ‘handle’ of the sender or receiver given the very nature of the conversation. There is no higher level evidence authentication required for the court to accept the electronic communication evidence based on the current requirement of NJ Evidence Rule 901.

What does this mean for you?   If you have been charged with any type of cyber harassment, criminal sexual contact, sexual contact, possession of child pornography, sending photos to and receiving photos from friends of under age girls or boys, can be introduce merely by testimony from the receiver or stander of those electronic communications. The state is not required to bring to court someone from Facebook or Twitter or Instagram to verify account or account information for the court to except the evidence.

In other words, more often than not, your tweet, your Facebook postings, your Instagram photos,  your emails and text who you are sending to someone you know first hand will be very easily brought into court and used against you on a regular basis. The law enforcement community loves your electronic media and communications because every communication, every text, every post is preserved; especially by any aggrieved party who wants to bring that stuff to the police!  These communications will be used against you. Now the receiver of those communications can legally bring them to the police, the police will take screen shots, save the stuff, and use them against you with the receivers testimony, not much more is needed!!

In this case the female defendant was charged with aggravated assault and simple assault after she struck her baby dad in the face with the shoe because he brought a new girlfriend to a party they both ended up at. They then commenced a Twitter communication back-and-forth with the ex-boyfriend.  The boy brought charges and attempted to introduce at the time of the trial the Instagram photo/text from the defendant/girlfriend with the “just shoes ya to the face” tweet! The judge allowed the victim to identify who the Instagram account was to his knowledge and what was said at the time of trial. Once this took place the Instagram communication was authenticated and the evidence was considered valid and confident for the judge to consider. As a result of the defendant was found guilty by the Municipal Court and again after a trial denovo in the Superior Court based on her own admission to a text/Instagram post, tweet, email, Facebook post after the fact.

The key to this appellate court’s evidence decision is the need for a) the victim to identify with her or his knowledge who the post was from, b) who the post identifying information is in the subject of the post, and c) how it relates to her or him personally.  This will establish that the content is known to the proponent of the evidence, also known as the participant who was sending and receiving the communications. Under New Jersey rule of evidence 901 this is an adequate form of authentication.  Essentially, the appellate division is requiring the trial court to conduct a mini hearing and act as the gatekeeper to determine whether this electronic communication evidence should come in. The trial court is required to determine the authentication of the electronic communicated evidence by obtaining direct proof via having the proponent of the evidence, the state, or the victim, demonstrate that the communication was communicating intimate knowledge which only the sender or receiver/writer or a participant would be aware of.  This “reply doctrine” allows “a writing to be authenticated by circumstantial evidence that it was sent in reply to a previous communication”.

The municipal court judge found here that the defendants Twitter handle, her profile photo, the content of the tweet, it’s reply, and the testimony presented at trial was sufficient to meet that burden of proof and established a prima facia case to support introduction of the evidence. The tweet was considered and the defendant was found guilty by her own words!!!!
Get off of your phone, stop Facebooking, stop texting, stop tweeting, stop sending Instagram photos. You could be in trouble if you don’t and what your electronic communications can be used against you in the future.
Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

Leave a Comment