Can You Testify With Your Smart Phone?
Yes, but be sure to promptly E-mail all of your notes, files and photos to your work E-mail.
In some respects, with the introduction of smart phones, policing has become easier. Apps developed for smart phones have allowed us to take statements, document crime scenes and type notes all with one device.
The question has been asked, though, “How does this use of the smart phone work with the rules of evidence?” Good question. This leads to other good questions: “Can I use my smart phone on the stand, like my notebook? If I use my smart phone on the stand, like my notebook, is it open to inspection? If I use my smart phone on the stand, can the phone be entered into evidence and taken from me?”
Let’s start with a basic scenario. You are on patrol; you have a smart phone and you have learned there are smart phone apps specifically designed for police officers. You have decided to download an app and start using it. At some point during your shift, you notice someone driving erratically and you stop them. During your conversation, you detect certain cues that lead you to believe you are dealing with an intoxicated driver. You did not bring your clipboard to the stopped car with you on the initial approach, but never fear, you have your smart phone with your new police app. You start a field sobriety test and document findings with your smart phone. You arrest the driver and set the court date. A month later you are in court, armed with your notes in your smart phone.
To answer these questions, we spoke with a local prosecutor and a local defense attorney who also sits as a substitute judge. Before we get into a discussion about this, we must caution you; the answers we learned are not only specific to the Commonwealth of Virginia, but very specific to the Richmond metropolitan area. We will provide a generalization here, but you must check your own courts to learn your own answers. Check not only with your prosecutor and judges, but check with defense attorneys since they ultimately will be the ones to enter a motion to inspect the phone or enter the phone as evidence.
Both the prosecutor and defense attorney agree, you may use your phone to refresh your memory from your notes. In today’s age of technology, the smart phone and other devices are replacing notebooks, just as the laptop has replaced the typewriter. Smart phones are so pervasive in today’s society, it is hard not to use one when you have one.
So, can the smart phone be inspected, just as a notebook, when it is used to refresh memory on the stand? Ultimately, yes it can. The degree of inspection, though, is up to the judge.
The prosecutor admits that the smart phone may be inspected if it is used by the officer on the stand. The defense attorney said he would push for the inspection, but as a judge, he would not allow it or at least allow a very limited scope.
Though most of society is at least familiar with smart phones, different phones have different operating systems, and the court does not have the time to allow a full inspection of the phone for each type of phone on each case. The defense attorney/substitute judge said he would allow inspection of only those items pertaining to the case at hand and nothing further.
Will an officer’s phone be taken from him and entered into evidence? No, according to both the prosecutor and defense attorney. Both agree that the phone is used for notes, and it’s the content of the notes, not the “notebook,” that is important.
Some apps allow for notes to be E-mailed. The hard copy of the notes may be entered into evidence, but not the phone itself. Courts do not have, at this time, the ability to maintain a charge on every type of smart device on the market. When the phone battery dies, so does the usefulness of the information contained on it. This is still a good reason, though, to E-mail all notes, photographs and sound files to your work E-mail as soon as practical after they are obtained.
Both prosecutor and defense attorney agree on one final point. Just as with holding a clipboard, the officer should not get so focused on using the smart phone or an app on a smart phone that his or her focus on safety is compromised. No app is worth having to get out of a tight situation because the focus was on the phone and not the bad guy. Keep your eyes up and hands ready. There is no app for that.
Paul Witten and Tim Meacham are police officers for a private university in the Richmond, Va., area. Witten holds a BA in government and politics from the University of Maryland. Meacham holds a MS in criminal justice from the University of Cincinnati.
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