Mobile phones as procedural evidence

Day by day we are all more dependent on mobile phones, known in the English-speaking world as “cellular phones”. This is so to the point that when it stays at home, we lose it, it breaks or is stolen, we suffer a significant nervous disturbance, a feeling of insecurity, unbearable discomfort…

The “mobile phones” are no longer just, as in the beginning, mere instruments of oral communication, but are now, fundamentally, generators of messages , chats, whatsapps, and an endless number of “applications”, photographs, videos, social agendas and job records, news, bank relations and lately even payment instruments… and train entrance tickets, airplanes, theaters…etc.

This being so, and therefore constituting the “mobile” depository of fundamental parts of our lives, there should be nothing strange about the “products” of its activity and, therefore, of its owners, but rather the mobile phone, in itself, as “piece of conviction” that is integrated into the actions either as a consequence of having been confiscated by the police in the course of a possible criminal activity, having been thus agreed by the judicial authority, or even at the request of the Prosecutor, the Defense or another of the parties to the dispute that shows their legitimate interest in having of said piece of evidence to obtain the favorable conviction of the Judge or the Jury to your interests.

Suppose, for example, that it is a criminal proceeding in one of the few cases that legally corresponds to the Jury Court (commonly called “Popular Court” ), be it a homicide, and the Prosecutor requests that the mobile phone be admitted, as a piece of conviction and evidence that will be delivered to the Jury for examination with the rest of the evidence ; and the Presiding Magistrate agrees.

Once the jury’s deliberation process has begun, its members could, in their investigative zeal, turn on the phone and examine all its content, without exception; and everything that results from that exploration could form part of the considerations that the Jury would take into account to support the answers to the questions “object of the verdict”.

In the United States, one of the first cases on this very special and novel issue is the one known as Hape versus State (of Indiana ), in which the Judge –at the defense’s protest because the Jury had turned on the cell phone and extracted elements of conviction from the text messages contrary to their interests– pointed out that “< em>turning on an electronic device made to be turned on constitutes an allowable examination by the Jury”. An even more curious case is the one known as State (of Washington) v. Nord, of the year 2015, in which the Judge admitted as evidence a whole backpack in which he inadvertently he had hidden a mobile phone that the jury was able to find and, logically, proceeded to examine, but apparently without using any element extracted from it in the considerations of its verdict.

It is clear that a cautious and diligent Defense Counsel will take extreme care not to allow a mobile phone to enter the Jury as a piece of evidence without first having full knowledge of its full contents and how it might affect your defense. If he is not sure of this and the Judge admits the mobile phone as evidence to be delivered to the Jury, the defender can validly argue that the mobile phone must be delivered totally inoperative, so that he cannot receive any new message or information that could negatively alter the circumstances of the case sub judice, and so that, not even involuntarily during the examination of the device, a jury can alter or delete all or part of its content.

If what the Prosecutor wants, instead of admitting the telephone device as evidence, is only the admission of part of its content, such as certain text messages that would prove the defendant’s contact with persons incriminated in the criminal act, the defender must, of course, challenge and, where appropriate, protest their admission until their full and literal authenticity is fully collated and verified and they are given full opportunity to learn and plead.

Lastly, the defense attorney must be prepared to combat any irregularity that he appreciates in the use of mobile phones as evidence given the enormous complexity and breadth of its contents, having to take superlative care that the Presiding Magistrate sends the Jury instructions very clear, precise and especially limiting regarding its use during the deliberation process of the verdict, stressing to the Jury Spokesperson the inexcusable need to expressly and immediately consult any doubt that his examination may produce to any member of the Jury; an issue that must be resolved in court with the necessary presence of the Prosecutor and the Defense to guarantee the procedural equality of the parties and respect for effective judicial protection.

Gustavo López-Muñoz y Larraz
Director of the Criminal Law Department JL Casajuana – Abogados

08/30/2016