Analyzing the Role of Digital Evidence in Madison Domestic Violence Cases

Is Digital Evidence Admissible in Criminal Cases in Madison?

Oftentimes in domestic violence cases, there are only two witnesses. That means that if each person has a different account of what happens and there is no objective evidence available, the case often comes down to “he-said, she-said.” Particularly in cases involving false allegations of domestic violence, it is critical that each party’s account is either supported by or contradicted by objective evidence, most often evidence that can be found on a persons’ cell phone. We have a track record of finding that evidence and using it to demonstrate our clients’ innocence.

Our firm’s criminal defense attorneys in Wisconsin evaluate the strength of each domestic violence case, the helpfulness in digital evidence in supporting their defense, and whether our clients should hire a digital forensic expert to help “extract” or retrieve critical evidence from our clients’ cell phone to help prove our clients’ innocence.

What is the Nature of Digital Evidence in Criminal Cases?

The National Institute of Justice describes digital evidence as the information and data of value stored on, received, or transmitted through an electronic device. The Supreme Court adds that modern technology includes the following elements that help differentiate standard evidence from digital evidence. Unlike typical evidence in  a court case, digital evidence:

• Has a wider scope
• Deals with both physical and personal sensitive information
• Taps into interconnected criminal justice issues beyond the investigator’s typical role in evidence collection.

Some domestic violence cases allege that the defendant has used technology to commit a crime. This can be referred to as cyber-violence or tech-abuse. For example, someone may be accused of tracking another person using GPS technology or sending harassing messages. Regardless of the term used, the involvement of digital evidence can make these cases more complicated. Because of the high rate of false allegations of domestic abuse, especially during high conflict relationships, if you hire us to handle your domestic violence case, our firm may recommend hiring a digital forensic expert to analyze a specific device or digital technology and analyze patterns that have proven our clients’ innocence in complex cases involving digital technology.

Defending yourself can be challenging if you lack knowledge of these types of legal intricacies. Our team of domestic violence attorneys in Madison has the experience and track record of success to help you win your case.

What Types of Digital Evidence Can Be Presented in a Domestic Violence Case?

Our team of Madison domestic violence lawyers adapt our strategies to what will be most successful in winning a specific type of domestic case. The following types of digital evidence is commonly used in domestic violence cases.

Portable Electronics

The most common type of digital evidence collected by law enforcement are cell phones. Similarly, tablets have a similar function, storing large amounts of information, including messages, photos, and search history. Law enforcement cannot inspect your phone, tablet, or other portable electronic device without a search warrant unless you give them permission. You do not have to give law enforcement permission to search your phone without a search warrant. If law enforcement has authority to search your phone, they will almost always “extract” or create a digital copy of a significant amount of data from your phone. Yet depending on the extraction tool and the way information is stored on your phone, law enforcement may be unable to extract information from certain applications without your passwords. In that case, law enforcement may issue a subpeona to the company that owns and operates the application to request the evidence; for example, the subpoena may be issued to Snapchat, Facebook Messenger, Tiktok to request information from your account. 

Law enforcement may search for the following sources of information from your or the alleged victim’s digital devices in search of evidence to convict you:

• Call logs between you and the alleged victim;
• GPS data that demonstrates whether you were in the location at the time of the alleged events;
• Messages relating to the history of communication between yourself and the alleged victim, including around the time of the allegations;
• Photos or videos that can support or contradict historical events alleged by your accuser, or which can prove historical events that demonstrate your account of what happened.

If you think you have digital evidence that could help or hurt your case, talk to our team of experienced Madison domestic attorneys. We will review the electronic evidence and evaluate the strength of your defense.

Even though law enforcement may be able to search some of the information on your phone, investigators only have so much time and may miss critical information related to your case. Yet in many cases, law enforcement will not collect your cell phone. It is critical that you discuss with your attorney the type of information that may be on your phone that may be related to your case. In many cases, our legal team has been able to identify critical evidence that has resulted in successful outcomes for our clients in domestic violence cases.

Internet and Computers

The government may also collect other physical evidence, including your computer, during domestic violence investigations. Investigators may search temporary internet files, browsing history, photos, emails, content downloaded from the computer’s hard drive, and cookies that could be relevant in domestic abuse cases. Similarly, internet websites are a source from which investigators found traces of digital evidence. Message boards, chat rooms, and file-sharing networks are some places they can search for evidence to incriminate you.

However, the worldwide nature of Internet technologies can sometimes make it complex to uncover this information.

What Challenges Does Digital Evidence Present in Criminal Cases?

Digital evidence can sometimes be prone to misinterpretation. Texts can often be misinterpreted, whether taken out of context or because of other common assumptions that prevent the viewer from accurately and reliably interpreting the text message. GPS tools also can have a margin of error. Additionally, some “cache” or data from a digital phone extraction may be on your phone even though you did not view that information. Prosecutors, law enforcement officers and jurors who are not familiar with these common types of misinformation may misinterpret the evidence. In some cases, our legal team will retain digital evidence experts to testify to the types of misinformation involved in the case to refute the government’s keg arguments when those arguments depend on this type of misinterpretation of the evidence. These experts can also translate complex legal and technological jargon into language the average person can understand to enable you to understand the charges accurately and defend yourself effectively.

What Are My Rights in a Domestic Violence Case Involving Digital Evidence?

First, you are not required to make a statement to police. You are only required to provide identifying information. Even if you are innocent, if you do not feel comfortable speaking to police without a lawyer, you should tell the police officer respectfully that you do not wish to make any statements without first being able to speak to an attorney. The officer will have to respect your rights. You may be arrested, but in many cases statements can be taken out of context and the accused does not know what answers can help and hurt his or her case. That is why criminal defense lawyers recommend that in almost every situation a person accused of a crime should not discuss the allegations with police or with any person until having the opportunity to first speak with a criminal defense attorney. If police violate your rights by trying to force you to make a statement, you should continue to assert your right to not make any statements until you first have the opportunity to speak to a lawyer. Once the government collects digital evidence during its investigation, whether evidence from your devices or accounts or your accuser’s devices and accounts, you have a right to “inspect” or review that evidence. As explained above, the government cannot seize evidence, including your devices, without a search warrant; if that warrant lacks probable cause for examples, the government may lose the right to use the digital evidence in court. If you hire our firm and we determine that there are violations of your constitutional rights, our team of skilled criminal defense lawyers will argue that, at a minimum, the government should not be able to use the evidence at trial, and that the judge should dismiss your entire case if that option is legally permitted. Additionally, if the government has an expert who interprets the digital evidence, you may have a constitutional right to hire your own expert who would be able to counter the government’s expert.

An Experienced Criminal Defense Attorney Analyzing the Role of Digital Evidence in a Criminal Case

Facing domestic violence criminal charges can be scary, given that the legal consequences can change your entire life by causing you to face a possible jail or prison sentence, potentially deprive you of your Second Amendment right to bear arms, and in some cases cause you to lose custody and period of placement with your own children. The digital evidence presented in your case can be crucial as it has in many cases resulted in our clients being found not guilty, having their entire cases dismissed, or receiving deferred prosecution, which allows them to have all charges dismissed upon successful completion of certain requirements. Hiring our team of skilled criminal defense attorneys in Madison will help you maximize your chances of a successful outcome.

Casper Mehlos Law Group LLC not only has skilled domestic violence attorneys in Madison, but a long track record of success in domestic violence cases. We can assess your case and provide legal counsel and representation to help you win your case. As explained above, domestic violence charges can change your life in countless ways, both in the near-term and long-term, and if you hire our firm we will be able to help you understand how we can address each of those potential life-changing consequences and help you get the best opportunity for a successful resolution of your case. Call us at 608-820-8926 to schedule a FREE consultation.