Interview with Judge on Digital Evidence in High-Conflict Family Cases

Published: 3/7/2025
By Jonathan D. Steele
Interview with Judge on Digital Evidence in High-Conflict Family Cases

Summary

The biggest cybersecurity challenge in family law cases arises from the complexities of obtaining verifiable digital evidence from encrypted messaging services, which can obscure the authenticity of communications and complicate legal proceedings. The proposed legal solution, represented by the EARN IT Act, aims to hold technology companies accountable for encryption practices, potentially allowing for greater access to critical digital communications while raising concerns over privacy rights.

Judge, can you share your background and experience regarding digital evidence in family law cases?

Certainly. I have been serving as a family court judge for over twenty years, during which I have encountered a wide array of cases, particularly those involving high-conflict situations. My experience with digital evidence began to intensify around the mid-2010s, as the proliferation of smartphones and encrypted messaging services became more prevalent. I have handled cases where digital communications played a critical role in determining custody arrangements, visitation rights, and even allegations of domestic violence. Understanding the nuances of digital evidence, particularly from encrypted messaging services, has become essential in navigating these complex family dynamics.

What challenges do you face when dealing with evidence from encrypted messaging services in family law cases?

The primary challenge lies in the **nature of encryption** itself. Encrypted messaging services, such as Signal or WhatsApp, are designed to ensure that messages are only accessible to the sender and receiver. This means that if one party claims that the other has engaged in inappropriate conduct via these platforms, obtaining that evidence can be significantly complicated. Courts generally rely on the principle of **authenticity**, which requires that evidence be verifiable and credible. When dealing with encrypted messages, we often find ourselves in a position where one party may present screenshots or claims without the ability to independently verify them.

Moreover, there is a growing concern about **privacy rights**. Parties involved in family law disputes have a right to privacy concerning their communications, even if they are ultimately deemed inappropriate. This creates an intricate balancing act, as we must consider the potential relevance of these messages while respecting individual privacy rights. Additionally, the rapid evolution of technology often outpaces legal frameworks, leaving many judges without clear guidelines on how to handle such evidence.

Can you provide an example of a case that highlights the issues surrounding encrypted messaging in family law?

Absolutely. One notable case that comes to mind involved a custody dispute between two parents, where allegations of emotional abuse were raised. The mother claimed that the father had sent threatening messages through an encrypted app, but he denied the allegations, stating that the messages were fabricated. The mother presented screenshots of conversations, but they were not verifiable due to the encryption. This led to a stalemate, as the father could not provide counter-evidence without compromising his own privacy.

To address this, I ordered a forensic analysis of the father’s phone, which revealed that he had deleted the app shortly after the alleged messages were sent. While this did not definitively prove the mother’s claims, it raised questions regarding his credibility. Ultimately, we had to rely on other forms of evidence, including testimony from mutual acquaintances, to make a determination about custody. This case illustrated the challenges of relying solely on encrypted messaging as evidence and highlighted the need for judges to consider a **holistic view** of the evidence presented.

What advice would you give to legal practitioners regarding the use of digital evidence in family law cases?

My primary piece of advice would be to **thoroughly document and preserve evidence**. When dealing with digital communications, it is crucial to maintain the integrity of the evidence. This means capturing not just screenshots but also ensuring that the metadata associated with those messages is preserved. Metadata can provide critical context, such as timestamps and sender information, which can be pivotal in establishing the authenticity of the messages.

Additionally, practitioners should educate themselves about the various types of digital evidence and their respective legal implications. For instance, understanding how different apps function and the implications of encryption can inform how evidence is collected and presented in court. It is also beneficial to engage with **digital forensic experts** who can assist in verifying the authenticity of the evidence and can testify to its reliability in court.

Lastly, always be prepared for the possibility that digital evidence may not be as straightforward as it seems. Judges, including myself, are becoming increasingly cautious about accepting digital evidence at face value. Therefore, presenting a complete story—one that includes corroborative evidence from various sources—can strengthen your case significantly.

Have you witnessed any significant legislative changes regarding digital evidence in family law?

Yes, one significant piece of legislation that has emerged is the **EARN IT Act**, which aims to create a framework for holding technology companies accountable for the use of encryption in their products. While it primarily focuses on combating child exploitation online, it has broader implications for how encrypted communications are treated in legal contexts. If enacted, this legislation could change the landscape of digital evidence, as it may require service providers to have mechanisms in place to provide law enforcement access to encrypted communications under certain circumstances.

This could potentially allow for greater access to digital communications in family law cases, but it raises significant concerns about privacy and the potential for abuse. As a judge, I am particularly attuned to how such changes could impact the rights of individuals involved in sensitive family matters. Therefore, while the legislative landscape evolves, practitioners must remain vigilant about these developments and how they could affect the admissibility of digital evidence in court.

Can you share a personal anecdote that illustrates the complexities of digital evidence in family law cases?

Certainly. I recall a case where a mother was seeking an order of protection against her ex-husband, claiming that he had sent her numerous threats via an encrypted messaging app. She brought in a series of screenshots that were quite alarming, but as I delved deeper, I realized that the context was essential. The father argued that the messages were taken out of context and that there had been ongoing communication that was not included in the evidence presented.

This situation prompted me to order a hearing where both parties could present their side of the story. During the hearing, it became clear that both parents had been engaging in a back-and-forth that was emotionally charged, leading to misinterpretations on both sides. It turned out that the father had also been receiving threats from the mother, which complicated the narrative further. This case reinforced the need to understand the broader context of communication, especially when digital evidence is involved.

In the end, we reached a resolution that emphasized the importance of healthy communication between the parents for the sake of their children. This experience highlighted the intricacies of digital evidence and how it can sometimes obscure the truth rather than clarify it. It serves as a reminder that while technology has provided new means of communication, it has also introduced new challenges in the realm of family law.

In summary, what are the key takeaways for practitioners dealing with digital evidence in high-conflict family cases?

To summarize, practitioners should focus on the following key takeaways:

By following these guidelines, practitioners can better navigate the complexities of family law cases involving digital evidence and strive for the best outcomes for their clients.

References

For more insights, read our Divorce Decoded blog.