The Champion

November 2009 , Page 28 

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An Approach to Cell Phone Evidence for Criminal Defense Attorneys

By Daniel K. Gelb

One need only walk down the street or through a mall in order to come to the conclusion that cell phones are widely used. The proliferation of electronically stored evidence (ESI) that resides on cell phones will have increasing importance when the prosecution alleges that cell phones were used in the commission of crimes. As a result, familiarity with electronic discovery (e-discovery) is a necessity for effectively defending a client in a criminal — as well as civil and regulatory — matter.

The purpose of this article is to provide a framework for understanding cell phone evidence in order to substantiate a client’s defense or to suppress or rebut the prosecution’s case.

I. Determining the Existence Of Cell Phone Evidence

Counsel must determine exactly what kind of phone the defendant used during the time frame of the offenses alleged, the features available and used by the defendant, and whether the defendant is the subscriber on the account. It is very difficult to challenge the prose

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