English
EspañolWhat is digital evidence?
Digital evidence, also known as electronic evidence, is information that:
- is stored on, received, or sent in a digital format by an electronic device; and
- can be used in court to help prove abuse occurred.
Tech misuse often creates this type of evidence, such as when the abuser sends text messages or makes social media posts that contain threats. Those messages or posts, or screenshots of them, become digital evidence that can be used in court to help prove the threatening behavior. Also, if an abuser misuses tech to stalk a victim, there may be GPS data, video footage, or stalkerware purchases that can be used as evidence to help prove what happened.
How is digital evidence different from other types of evidence?
One difference between digital evidence and other evidence is the actual format of it. Since digital evidence is in electronic data files, such as a “png” file for an image, you will need to think through how to present the evidence in a format that the judge can examine. For example, let’s say your evidence is on your cell phone. If the rules of evidence in your state require the judge to keep all evidence submitted in the case as part of the court record, you would want to think about how to get your evidence printed from your phone. This way, you don’t have to leave your actual cell phone with the judge.
Another difference is that digital evidence can be easily changed, damaged, or destroyed, so it is important to protect the data. This may be done by:
- creating backup copies that are saved to a second device;
- taking videos or screenshots, and storing them somewhere that the abuser cannot access; and
- updating account passwords. You can learn more about password safety on Safety Net’s website.
What should I do to prepare for my case if it involves digital evidence?
Preparing for your case will depend on your state’s rules of evidence, the type of abuse you are experiencing, and other factors. Here are some things you may want to consider:
- You may be able to get the evidence you need directly through your own social media, phone, and other accounts. If not, you may have to request that a third party, such as a telephone company, provide you with the evidence you need. But, the company might refuse to provide it without a subpoena.
- Take pictures, screenshots, or printouts of any evidence on your phone or tablet. Then print them out so you can hand them into the judge in court if needed. If your evidence is only on your phone or tablet, you may be required to leave it with the judge until your hearing is over if you don’t have it printed out or saved in another format. You can read more about saving evidence on our Documenting/Saving Evidence page.
- 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:
- how you came upon that evidence; and
- how you know that it is the abuser who sent the messages, posted the social media posts, etc.
- Check with a lawyer in your state if you made a video or audio recording to capture evidence of the abuse. In some states, it may not be legal for you to record a conversation if the other person being recorded doesn’t know about it. You can read more about recording laws on our website.
It is helpful to work with a lawyer to prepare for a court hearing or get advice about what evidence you may be able to use in court.
Will I be able to get my digital evidence into the court record during my hearing?
Generally, the “rules of evidence” govern what can be considered by a judge at trial. Your state may have its own rules or the state may follow the Federal Rules of Evidence. The rules of evidence deal with issues such as:
- exceptions to the rule against “hearsay;”
- what types of documents may have to be certified in order for them to be admitted into court during a trial;
- what types of questions a witness can answer when testifying; and
- other topics.
On our Rules of Evidence page, we link to most states’ rules. However, even if you read your state’s rules, it may not be clear as to whether your digital evidence is likely to be admitted into the court record. This is something that a lawyer can best advise you on. You can find lawyers in your state on our Finding a Lawyer page.
