NACDL - Practice Points: Cellphones in Evidence

Practice Points: Cellphones in Evidence

Defense counsel should be wary when the defendant’s case involves a seized cellphone that may be introduced into evidence. Are the jurors going to take the phone into the jury room? Is the cellphone inoperable? What should the defense team do if it is blindsided by jurors accessing the cellphone during deliberations? It is crucial to examine the cellphone carefully to make sure it contains no unexpected incriminating information. In addition, defense counsel should check for deleted or normally hidden information that might be restorable by a tech-savvy juror.