NEW JERSEY COURTS FORBID LAY TESTIMONY OF PHONE GPS TECHNOLOGY WITHOUT A REQUISITE KNOWLEDGE OR EXPERIENCE WITH USING GPS
DOCKET NO. A-1631-21
Decided July 31, 2023
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division of New Jersey affirmed an entry of a Final Restraining Order after denying defendant’s testimony regarding her GPS location on the day in question.
In H.A. v. S.M.A., Plaintiff secured an amended temporary restraining order (TRO) against defendant on June 22, 2021, based on the allegations of harassment and assault. Plaintiff claimed defendant had threatened to kill him during a phone call on June 2, sent him threatening text messages and stabbed him on June 6. The complaint noted that defendant had an active TRO against plaintiff issued in New York.
At trial, plaintiff testified that on June 6, 2021, he returned to the parties’ former marital residence in Union Township to pick up some things he had left behind. Defendant was no longer living there, but A.S., an acquaintance of plaintiff, had moved in with his family. Plaintiff said the doorbell rang, he answered it, and defendant entered the house. They argued over their pending divorce and a deed defendant had allegedly forged.
During the altercation, defendant cut plaintiff across his chest with a fruit knife. When A.S. tried to intervene, defendant cut him too. Plaintiff called 9- 1-1, police responded to the scene, and plaintiff was treated for his injuries at University Hospital. Photos of plaintiff’s injuries and the police report of the incident were admitted into evidence.
Defendant was arrested. Plaintiff testified that on July 7, defendant called him from jail. She threated to kill him, or “get someone else to kill [him].”
Defendant denied the allegations, stating on June 6 she was shopping with family members; she produced receipts from two stores, one of which clearly indicated a purchase made at 4:12 p.m. Defendant said she proceeded to a store in Watchung where her brother worked. A photograph from defendant’s cell phone, showing her and her family and time-stamped 4:35 p.m., was admitted into evidence. Defendant produced a private investigator who testified that the shortest route from the Watchung store to the scene of the alleged knifing was 8.7 miles and took approximately fourteen minutes to drive.
Defendant attempted to introduce her cell phone’s stored GPS information, how long she was at her brother’s store in Watchung on June 6. Plaintiff’s counsel objected, contending defendant was not qualified as an expert, and the testimony “would have to go through multiple layers of authentication” before being admitted. Defense counsel’s retort was “everyone uses GPS now and everyone understands it,” and the objection was only to the weight of the proposed evidence, not its admissibility. The judge ruled defendant was “not qualified to testify about this technology” and sustained plaintiff’s objection
Immediately following the completion of the testimony, the judge entered an oral opinion on the record. Focusing solely on the alleged June 6 assault, the judge found plaintiff was “a credible witness[,]” whose “testimony was consistent” and “delivered with . . . an appropriate demeanor.” The judge did not find defendant “to be credible.”
The judge found defendant committed the predicate act of assault. He then considered the evidence pursuant to the second Silver prong and entered the FRO.
Defendant appealed, arguing the GPS information should have been admitted into evidence. The Appellate Division disagreed and affirmed the entry of the FRO, finding there has only been limited circumstances in which GPS information has been allowed as evidence and in those situations, those individuals were usually employees who worked with the technology and had an above-average understanding of how GPS worked.
The case is important to understand that almost everyone uses GPS technology on their phone daily. This information can contain your whereabouts down to the second. However, introducing the information as evidence in trial is limited, as Courts are concerned about the ability to verify the accuracy of the information. Things may change, but for now, it seems like expert testimony would be required to introduce GPS evidence as to one’s location.
If you have a Temporary Restraining Order (TRO) against someone else or against yourself, contact the experienced attorneys at Hark & Hark today. There are several things attorneys can do to bolster your credibility and damage the credibility of the other party. Do not wait until court because if you are the defendant and an FRO is put against you or if you are the plaintiff and your TRO is dismissed it is significantly more difficult to overturn the result! Contact Hark & Hark today! We help clients with domestic violence, FROs, TROs, prenups, divorce, custody, child support, alimony, adoptions and more.
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