Missouri case law cell phone search

Common sense, a reasonably objective evaluation of your intended use of the proposed photographic evidence and some trial experience are usually an adequate guide to the allowable demonstrative or evidentiary uses of a photograph. A trier of facts evaluation of non-demeanor evidence like photographs as contrasted with live witness testimony is theoretically subject to a less deferential standard of appellate review, but this more stringent approach is often not strictly applied.

However, when photographs are to be used as the basis for expert witness testimony or to actually prove the existence of an allegedly depicted condition, then they will be held to a higher standard and you will need to be much more cognizant of subtle technical and photographic parameters.

Admissibility of photographs varies, depending upon the evidentiary context and the purpose for which a photograph is offered.

E-Mail & Text Message Evidence in Litigation | Stange Law Firm, PC |

Courts are usually willing to tolerate some inaccuracies in a photograph so long as these are explained to the trier of fact so that they may be taken into account. However, where a photograph is used as a basis for establishing critical ultimate facts or as the basis for expert testimony, courts are less willing to overlook major gaps. Henry , stated the majority rule:. That there are inaccuracies or defects in the photograph does not necessarily render it inadmissible as long as there is an explanation of these imperfections so that the jury is not misled.

However, in Kaps , the Alaska Supreme Court excluded the photograph in question because the defendant's accident reconstruction expert was attempting to use the photograph, in conjunction with a reconstructive technique known as perspective analysis, to establish how far across the highway centerline the Plaintiff had alleged strayed. In order to use a photograph as a basis for perspective analysis reconstruction, the focal length used to take the photograph and the conditions under which the photograph was taken must be known with a substantial degree of precision, which the Defendant could not show.


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In this case, the photograph was to be used to provide actual data about the accident scene rather than merely illustrating the area. Hence, it was subject to a more rigorous authentication process which it ultimately failed.

STATE OF MISSOURI v. CHARLES WILLIAMS

Similarly, where a photograph is offered to prove that some condition did not exist, a court will look closely at the time frame when a photograph was purportedly taken. For example, if a photograph is offered of criminal defendants' hands purporting to show that there was no gunshot residue, and then the offering party must establish that the photograph was taken at a time when gunshot residue would still be apparent. Absent that showing, the photograph may not be admitted. On the other hand, where direct evidence of a condition provided by an otherwise authenticated photograph is only one link in a logical fact structure, the photograph will likely be admitted to prove the depicted condition.

In cases where there is sufficient countervailing testimony, the admission of photographs with a shaky time frame may be harmless error. For example, the Alaska Supreme Court refused to reverse a verdict despite the trial courts admission into evidence of the defendant highway departments arguably inaccurate photographs that purported to show that an accident site was well-sanded despite the Plaintiffs contrary contentions. The time frame when these photographs were taken, relative to the time of the accident, was never precisely established but was sufficient contrary testimonial evidence by the investigating State Troopers actually at the accident establishing that photographs were inaccurate and that the road was poorly sanded.

Hence, admitting these allegedly misleading photographs with an imprecise time frame was harmless error. Videos and photos can also often be attached to email and text communication and can, likewise, present admissibility challenges. One of the questions we are asked more often than any other is "can you tell me if this audio or video recording has been edited?

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In other words, the original evidence is only original if it has not been copied or cloned for analysis. With today's advanced audio and video editing software being readily available, it is becoming easier and easier to edit or tamper with forensic evidence. Establishing the authenticity of audio or video is extremely important when presenting admissible evidence to the court.


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  4. Primeau Forensics' examiners continue their education yearly in both audio and video forensics. Video authentication has similarities to audio authentication in that it is always best to preserve the original recording to remove all doubt about genuineness. When the original recording is not available, the video forensic expert has to investigate several aspects of the video recording, including the metadata and hex information, to determine if a video recording has been edited.

    Much of the video authentication process is scientific. The video forensic expert not only investigates the elements of the video recording itself, but also investigates the way the video recording surfaced, how it was created and the type of equipment that was used to create the video recording in question. Together, they prohibit interception of oral and electronic communication without the consent of at least one party to the communication. These apply to traditional telephones, wireless phones, and cell phones.

    As a practical note, secretly recorded oral communications are almost always excluded at trial, whereas electronic communications are almost never automatically excluded. For example, in Conner v. Tate , a woman had a cause of action against her lover's wife who was intercepting phone conversations and recording voicemail messages.

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    The most common application for cell phones in a divorce matter is to subpoena the carrier for itemized billing, but that is changing. Text messages or Short Message Service SMS messages may be worth tracking down because a lot may be said in the characters that some phones now allow. SMS messages may also transmit photos, sounds, and videos. As many people now communicate far more frequently through text message than phone calls, these may provide an excellent source of information when it comes to proving the behavior of the opposing party.

    Outside of intercepting telephone conversations or voicemails, smartphone data and tablets are akin to a computer.

    Can Missouri police search your cellphone?

    Typically, subpoenaing cell phone records through providers is much easier than subpoenaing social media or email providers. This is because unlike social media websites, cell phone providers, at least more likely than not, do business in your state. Therefore, you simply serve a subpoena on a registered agent if they have one within the state.

    If they do not have a registered agent, physically serve the subpoena on a company store. Like any subpoena, it must be calculated to produce relevant evidence, and remember, if you decide to subpoena the provider, you are unlikely to receive the content of any text message conversations.

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    If text messages or emails are what you seek, you are likely better off trying to get them from the opposing party via appropriate discovery mechanisms. However, you might be able to subpoena email records from a business located in your state. The Stored Communications Act SCA imposes different levels of restrictions and protections, depending on whether the service provider at issue is providing electronic communication services or remote computing services. An "electronic communication service" means any service which provides to users thereof the ability to send or receive wire or electronic communications.

    And, with certain exceptions, the SCA prohibits "a person or entity providing an electronic communication service to the public" from "knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service. Generally, courts have a broad discretion on ruling on admission or exclusion of any evidence at trial including email and text messages. Electronic messages, particularly emails give rise to the difficulty of authenticating their actual author; even if they have been sent from one's email address. This is because it is possible that anyone can send an email from someone else's email address.

    Additional proof is therefore needed to establish authorship. In Missouri, foundation requirements for the admissibility of electronic messages were laid out in State v. The court stated that there should not be assumed authenticity of the origin of the message, based on either ownership or possession of the phone.

    The standard is this:. This rule was also applied in State v. Francis where the court examined the admissibility of non-testifying third-party text messages sent to Appellants phone, and text messages sent allegedly by the Appellant from that phone. The Appeals Court held there must be evidence that the messages were actually authored by the person alleged to have sent them.

    This includes admissions by the person who sent them or circumstantial evidence such as testimony by the recipient that they have in the past received messages or calls from the alleged author from that number. There could also be something which shows the author wrote the message, such as a personalized signature. Mere ownership of the phone or possession, does not presume authorship of all outgoing messages. Further, for non-testifying third party texts incoming texts , which are ordinarily regarded as hearsay, to be admissible, they must fall under any identified exception to the hearsay rule.

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    Such evidence is also only admissible to give contextual meaning to the reply. In this case, Respondent testified that the Appellant in addition to sending text messages from that number had also previously called and identified himself and this was enough to determine that Appellant had indeed sent the text message. Recently, courts have not had great difficulty in accepting the fact that a printout or a screen shot is an accurate representation of various online communications.

    In United States v. Catraban, the defendant contended that the computer printouts used against him were inaccurate, and he was able to show the inaccuracies in the data. Despite this, the court concluded the discrepancies merely went to the weight of the evidence as opposed to the issue of authentication.