Police officer with cell phoneThe U.S. Supreme Court recently ruled that arresting police officers do not have the right to search through your cell phone data without a search warrant. Police routinely confiscate personal effects and search through personal belongings for weapons and contraband, but comparing those types of searches to searching through cell phone data, according to Chief Justice John Roberts, “Is like saying a ride on horseback is materially indistinguishable from a flight to the moon…. Modern cellphones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet or a purse.”

But does it mean that your texts, phone logs, address book and other personal data are always safe from scrutiny, and cannot be used as evidence? Not at all.

In the state of New Jersey, texts can be used as evidence, but there are certain legal hurdles that must be cleared.

The identity of the texting parties needs to be substantiated and the source of the messages need to be authenticated. “Authenticated” means it must be proved that the person alleged to have written a particular text actually did so. Just because a text is on your cellphone is not sufficient evidence that you wrote the text.

If there is no witness who saw who wrote a particular text, and there are no clues in the text itself as to its authorship, and nobody just comes out and says, “I wrote that text,” there is no way of proving its authenticity. If they cannot be authenticated, texts may be considered as hearsay, and are therefore inadmissible as evidence.

As with any other type of evidence, the court must first admit the texts as evidence in your case. Either your counsel or the opposing counsel must request that your texts be entered into evidence, and must prove the importance of including this information in the case. They do not have the right to read all of your texts, just those that are entered during the discovery process and are relevant to your matter.

Today texting has become a major part of the way we communicate with each other today. As a method of communicating it has many appealing features: speed, immediacy, the ability to carry out several conversations simultaneously, and share photos and other information. What we don’t always consider is the ways that we are also creating an ongoing document that can be used as evidence in a court of law.

If you are involved in a legal matter—be is a divorce, a civil suit, or some other issue that needs to be settled by a court of law—be aware that, though the information on your phone cannot be searched without a warrant, it can be entered into a case as evidence, as long as the proper legal procedures are followed. Call us for a free consultation to learn more about your rights and responsibilities, before your case goes to court.

For a free consultation call 856-227-7888 or contact us at hinklelaw@lyndahinkle.com. We are happy to schedule your free consultation.

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The above is not specific legal advice nor does it create a lawyer-client relationship. Do not rely upon it without consulting an attorney to see how the information presented fits your unique circumstances.