The Champion

June 2016 , Page 53 

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Practice Points: Cellphones in Evidence

By Lisa J. Steele

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“I hate this evidence. It just opens new vistas of stupidity. We don’t need this kind of evidence. Turn it into a chart, charts and graphs. . . . This system was not designed for this technology.” 

 — Trial judge commenting on jury questions about a cellphone exhibit in a homicide case.

Police officers seized a cellphone from the defense attorney’s client. They examined it, either with the client’s permission or with a search warrant. Now the prosecutor wants to admit the seized cellphone as a full exhibit. What does defense counsel need to think about?

If the judge admits the cellphone without restriction, the jurors can take it with them into the jury room. They can turn it on. Anything they find in it is fair game for deliberations.1 In Hape v. State,2 one of the first cases to consider this question, the court held as follows

[T]he text messages at issue here are part and parcel of the cellular telephone in which they were stored, just as pages in a book belong to th

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