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EspañolWhat is digital evidence?
Digital evidence is information stored, received, or transmitted in a digital format by an electronic device that can be used in court to help prove your case. Digital evidence is sometimes referred to as electronic evidence. This evidence is often created when abuse involves the use of technology. Here are a few examples:
- When an abusive person sends text messages that contain threats, those texts, or pictures or screenshots of those texts, become digital evidence that can be used in court to help prove the threatening behavior;
- When an abusive person creates harassing posts on social media, those posts, or pictures or screenshots of those posts, become digital evidence that can be used in court to help prove the harassing behavior; or
- When someone uses technology to stalk a victim, in addition to potentially finding a physical GPS or Bluetooth tracking device, there may be evidence in the form of GPS tracking data, account log-in or activity history, video footage, or spyware purchases. Any of these can be used as evidence to help prove surveillance occurred.
How is digital evidence different from other types of evidence?
Digital evidence is different from other types of evidence that you may want to use in court, such as printed pictures, testimony, or official records.
One difference is that the original format of digital evidence is in electronic data files. These files are most commonly found on mobile devices and computers or stored in online accounts. Therefore, you will need to think through how to present it in a format that the judge will be able to examine and keep as part of the court’s record.
Digital evidence can be easily changed, damaged, or destroyed. It is important to protect the data by creating backup copies that are saved to a second device, taking screenshots and emailing them to yourself, and updating account passwords. If you take screenshots or photos, you will want to make sure they include the actual phone number or account information of the sender, not what you have the sender saved as in your contacts, as well as any time and date information. The court will also want to see any other messages that are a part of the same conversation to understand the context of the message. For example, if you have a thread of text messages about an upcoming parenting exchange and one of the texts includes a threat, you want to capture the entire conversation about the parenting exchange so the judge can see the threat within the context of the rest of the conversation.
What should I do to prepare for my case if it involves digital evidence?
What you should do in your individual case will depend on the type of case, your state’s rules of evidence, and the type of digital evidence you have. However, here are some things you may want to consider:
- Consider what is the easiest way to get your evidence. If you can get your evidence directly through your own accounts and devices, that is the easiest way. If you have to request that a third party, such as a cell phone provider, give you the evidence you need, this can be more difficult to accomplish, so it is important to ask for that information as soon as possible. It can take a lot of time for third parties to respond to your request, and many do not keep all their data for very long. If you are looking for the content of messages, such as emails, texts, or direct messages, that you do not have access to through your own accounts, this information may be difficult to get from a third-party company because of privacy laws and company policies. It might be the case that you would need a subpoena signed by the judge to get the evidence, which can also delay how long the process takes.
- Save the evidence in a way that best protects it. You can learn more about what needs to be saved and how best to save it in our Documenting/Saving Evidence section.
- Before your hearing, it’s important to find out from the court how the judge will accept digital evidence so you can plan accordingly. For example, if your evidence is located on your cell phone in a text message, social media post, or video recording, you would want to think about how to get this evidence downloaded or printed from your phone so that the judge doesn’t have to keep your phone. You might download it onto a flash drive or memory stick, or the judge might have another preference.
- Remember that you may also have to provide a copy of the evidence to the opposing party before your hearing. Make sure you find out from the court how many copies of the evidence you will need to provide and if they want you to label your evidence, also called “exhibits,” in a certain way. If your hearing is held remotely, you will want to ask the court if you have to submit your evidence electronically to the court ahead of the online hearing.
- Think about the testimony you plan to tell the judge and how your evidence fits with your testimony. In order to enter (“admit”) evidence in court, you will likely have to testify (“lay a foundation”) about:
- what the evidence is; for example, “This is a screenshot of a text message conversation between me and my spouse from June 13, 2024;”
- how you came upon that evidence or are familiar with what it is showing; for example, “I received this text message on my phone and took a screenshot of it;”
- how the copy of the evidence you are offering in court is a “fair and accurate” representation of the evidence as you originally saw it; and
- how you know that it is the abuser who sent the messages, posted the social media posts, etc. You can find more information about entering evidence in Is there a process to admit evidence other than testimony?
If you made a video or audio recording without the other party’s consent, please consult with a lawyer before trying to use that in court. In some states, it may not be legal for you to record a conversation if the other person doesn’t agree to the recording. You can also read more about recording laws on our website.
Will I be able to get my digital evidence into the court record during my hearing?
Each state is governed by what are called “rules of evidence.” Your state can have its own rules or follow the Federal Rules of Evidence. The rules generally address what is allowed as evidence in court and deal with issues such as:
- exceptions to the rule against “hearsay;”
- what types of documents may have to be certified for them to be admitted into court during a trial;
- what types of questions a witness can answer when testifying; and
- other topics.
Whether you can have your digital evidence admitted into the court record during your hearing may depend on what your state’s rules of evidence say and what the judge decides. You can ask the court clerk or legal self-help center what format they accept digital evidence in, such as a printed screenshot of a text message or a flash drive with a video on it. You can also find lawyers in your state on our Finding a Lawyer page if you want to get legal advice about presenting evidence in your case.
