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Is the collection of electronic evidence legally admissible

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Is the Collection of Electronic Evidence Legally Admissible?

Before the Internet became readily accessible to the public masses, uncovering proof of infidelity was generally left to the capable hands of a private investigator and their telephoto camera lenses. However, with the advent of modern technology, ranging from GPS trackers to computer spyware, it is simple for a spouse to play private investigator themselves. It is not difficult to find a computer program that will screenshots, keystrokes, websites, emails, and instant messages and save this information to the computer or send it to a designated remote location. These types of programs can be readily and easily downloaded to one’s home computer. On average, an adequate GPS tracker can be purchased for around $250.00. This device can be used to discover incriminating information about a spouse’s geographic location. In a fault divorce, evidence acquired through these means, records of a spouse’s visits to a lover’s home or graphic instant messages confirming an affair, can make or break the case. Moreover, such information can also be used in other matters related to the divorce. For example, this evidence can be used to prove whom your spouse is exposing your children to, and it can be used by a court to determine what the best interest of your children are. Such information can also be beneficial in deciding alimony and child support cases.

Is evidence gathered in this manner legally admissible? Is it even legal to do so?

New Hampshire is one of a handful of states in the United States that have passed anti-spyware laws. RSA 259-H makes it a criminal offense to purposefully install spyware on a computer on which the individual is not an authorized user and to use such programs for the purpose of obtaining personal information. However, this legislation does not create a blanket exclusionary rule whether or not intercepted evidence can be used in a civil trial. Whether or not such evidence is allowed to be used is left at the discretion of the individual court system.

Other states have followed the example created by one trial court in denying that such evidence can be used in trial. In the state of Florida, one woman installed the spyware program Spector on her husband’s personal computer and utilized it to record entire conversations the man had with another woman. Upon discovering the presence of the program, her husband requested that the court prevent his wife from utilizing the evidence in their divorce. The trial court issued a ruling, subsequently upheld by an appellate court, that although the federal and state wiretapping laws did not provide an exclusionary rule, the court possessed the legal authority to exclude the use of the evidence because it had been obtained in an illegal manner.

Whether or not a New Hampshire court will permit this type of evidence to be used will come down to the circumstances surrounding how the information was obtained. Was the spyware program installed before, during, or after the separation occurred? Was the program downloaded on a shared computer that both parties had ready access to? In theory, evidence captured by a spyware program installed on a family computer by an “authorized user” prior to a couple’s separation would be classified as admissible. On the other hand, installing a spyware program on a spouse’s work computer would more than likely gather evidence that would not be admissible in a NH court of law because it was obtained in an illegal manner.

Current spyware and wiretapping statutes, on the other hand, do not cover GPS trackers. Although it depends upon the particular jurisdiction, some law enforcement agencies have adopted the view that attaching a GPS tracker to a person’s vehicle is a form of stalking and is punishable by law. Recently, Kevin Merritt was charged by the Nashua Police Department with a stalking misdemeanor after he installed a tracker on his wife’s private vehicle and used the information to follow her to different locations. Whether a New Hampshire court would allow evidence gathered in such a manner and whether or not a person would be prosecuted by police will be dependent upon the unique facts surrounding a case. This includes who owns the vehicle and exactly how the information was gathered from the tracker and for what purpose it was used.

In New Hampshire, the waters surrounding electronic information gathering are murky, and it will require the assistance of an experienced New Hampshire divorce lawyer to assist a client in navigating the complex channels. To discuss the particulars of your case, please contact one of our experienced NH divorce attorneys today.

 

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