On August 8th, the Practising Law Institute presented a seminar/webinar entitled “Electronic Evidence in the New York State Courts: Representing the Legal Services Client 2016” to explore best practices, safety concerns, and ethical considerations in the case law surrounding electronic evidence for legal services clients in New York.
Technology has become a ubiquitous part of our lives, permeating every public and private space we have. Information can be accessed with the swipe of a finger or the press of a button, and records are accessed from locations all over the world via the cloud. Modern conversations not only happen over phone lines, but via texts, instant messaging, emails and digital recordings. These can be considered electronic evidence in a court of law if properly authenticated.
In addition to witness testimony, these pieces of evidence can help to establish relationships, prove authenticity of intentions, and fact check claims. Especially in domestic violence cases, these pieces of evidence can make a big difference in the outcomes. However, while technology can be used to assist legal services clients in their cases, it can also be abused to monitor, control and coerce victims.
In the first session of the seminar, Erica Olsen, from the National Network to End Domestic Violence, addressed many of the ways that abusers use technology to control their victims. There are plenty of ways technology can be used by abusers including, but not limited to: using spyware on computers and phones; putting physical surveillance equipment in the home or car; making disguised calls to manipulate evidence or sabotage a victim; and creating fake social media profiles and accounts to harass victims or undermine their integrity. Erica spoke on each of these methods and the best practices for discovering, undoing or mitigating the consequences for each of these.
While an attorney is not responsible for knowing about all technology abuse, being able to recognize the various ways and means can help them prepare for the case, keep their clients safe, and collect evidence. An anecdote, shared by Co-Chair Ian Harris of Staten Island Legal Services, involved a woman being able to avoid danger from her abuser by taking a screen shot of a text containing a gun emoji and using it to alert the judge and the police that he had threatened her. While many may believe a simple emoji is harmless, in this particular situation it was indicative of a threat made on her life.
Ian was able to recognize the danger inherent in the text and arrange for a warrant to be issued for the abuser’s arrest. He was also able to remove his client from her home, so she was not present when her abuser showed up to her home with a gun and asked for her. The abuser then proceeded to kill himself in front of her family when they told him she wasn’t there. If Ian had not taken his client seriously, or had not understood the implications of technology abuse, his client may not have survived.
A frequent advice to domestic violence victims is to get rid of the technology that the abuser is using to monitor them. However, Erica recommends NOT removing technology from the equation with domestic violence clients until after the court proceedings, as the removal of the technology won’t stop the abuse and can lead to an escalation. It also removes the ability for the client to monitor their abuser, look for warning signs of escalation, and collect necessary evidence. However, it would be prudent to find alternative means for the client to use technology so that the information being provided to the abuser is minimized or managed well to protect the client.
Even if technology can be used to abuse victims, it can also be used to provide victims leverage in their cases and can sometimes be the difference between freedom and continued abuse. The evidence provided in text messages, emails, phone records and other forms of communication can be submitted upon authentication during cases and used to establish controlling and abusive behavior as well as harassment of the client to lend authenticity and urgency to the proceedings.
In the second and third parts of the seminar, Ian Harris touched upon some best practices and ethical concerns both in presenting and authenticating the evidence, and in obtaining and storing information collected. Finally, the panel conducted a mock trial in order to provide an example of authenticating electronic evidence, and provide for questions and feedback from those present.
To learn more about electronic evidence in the New York Courts including best practices, ethical considerations and authentication procedures, you can watch the seminar for FREE at the Practising Law Institute.
- Ian Harris – Director, Family Law Unit, Staten Island Legal Services
- Terry Lawson – Director, Family and Immigration Unit, Legal Services NYC – Bronx
- Alexis C. Lorenzo – Senior Attorney, Foreclosure Prevention Unit, Legal Services NYC – Bronx
- Erica Olsen – Deputy Director, Safety Net Project, National Network to End Domestic Violence
- Ongoing and Emerging Technologies Utilized by Litigants
- Electronic Evidence in the New York State Courts
- Ethical Issues in Electronic Evidence Under the New York Rules
- Mock Trial: Electronic Evidence in the New York State Courts
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