How Lawyers Use Digital Evidence in Court

Web Admin - Tuesday, July 15, 2014

criminal defense digital evidenceThe advent of computer technology has reshaped the way that people communicate with each other, as well as how they treat information. This has created an interesting ripple effect in courts, which now have to deal with lawyers seeking to use digital evidence in court, which includes things like incriminating emails, computer files, and Facebook posts. 

The use of this sort of evidence comes with a variety of hurdles that an attorney must clear. The attorney must prove that the evidence is authentic and untampered with, as well as show that the records are acceptable as testimony. Prosecutors in a criminal case have a higher standard to meet, needing to show that their obtaining the evidence did not violate the defendant's privacy rights.

Hurdles to Using Digital Evidence

Lawyers face three hurdles in using digital evidence: authentication, hearsay, and privacy. Authentication refers to the need to demonstrate that the digital evidence is genuine and that no one fabricated or tampered with it. This is more difficult to show with things like emails than with physical letters because people can easily edit or alter the email's text to change the substance of the message. However, many courts still set a fairly low standard of authenticity for allowing the lawyers to present evidence to the jury; they leave the final determination of genuineness to the jury itself.

The next exception to the use of digital evidence is the rule forbidding “hearsay” testimony, which digital evidence often qualifies as. Hearsay is a statement made outside of a courtroom that the lawyer is attempting to use to prove the truth of whatever the statement is about. For instance, if a defendant is on trial for murder and one witness testifies that another witness told them they had seen the defendant commit the murder, that testimony would be hearsay since the testifying witness is just reciting an out-of-court statement.

Finally, in criminal cases, the prosecution must also show that the police obtained the evidence without violating a person's 4th Amendment rights. In many cases this means that the police must have received a warrant to perform the search, but there are exceptions to this. For instance, in the civil case of Largent v. Reed, the court determined that people do not have a “reasonable expectation of privacy” in regards to the things they post to Facebook, which would mean that a warrant would not be required to look through a person's Facebook profile.

How People Can Protect Themselves

Protecting online and digital information is a difficult prospect. Often, awareness of the public nature of things like Facebook posts, internet searches, and emails can help people stay alert to the fact that such things may be available as evidence in court. This can help modify people's behavior, and make them more careful about the sort of information that they make digitally available. Beyond that, there are some programs that can encrypt private data, but these can often be decrypted throughout the discovery process.

If you are concerned about the use of digital evidence against you in a trial, contact a Barrington criminal defense attorney today. Our firm represents clients across many northwest suburban towns like Rolling Meadows, Palatine, and Schaumburg.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.

Why Your LLC Needs an Operating Agreement

Web Admin - Tuesday, March 18, 2014

illinois corporate attorney llcsLimited Liability Companies (LLCs) are a form of business structure that allows owners to have some of the benefits of a standard corporation, but with more flexibility to control the particulars of the business. This flexibility makes it important to make thoughtful choices about things like voting rules and members’ rights and responsibilities at the start of the formation process. That is where the LLC operating agreement comes in. While operating agreements are not required by law in Illinois, it is still highly beneficial to have them because of the extra control that they provide.

What is an Operating Agreement?

An operating agreement is a document that controls the structure of the company and the members’ relationships. This can mean many different things, but operating agreements often include provisions related to:

  • - Each member’s percentage of ownership;
  • - Management of the LLC- Member Managed v. Manager Managed;
  • - The rights and responsibilities of the different members;
  • - Voting powers and dispute resolution mechanisms;
  • - Voting and meeting procedures; and
  • - Conditions relating to the sale of the LLC and the members’ related rights.

The Benefits of an Operating Agreement

Given the importance of the types of provisions that operating agreements contain, each LLC should have one, even if it is not technically required by law. The law forgoes this requirement because the legislature drafted a set of default rules to apply to LLCs for cases in which the members decide not to draft an operating agreement. While people often rely on these default rules, that is not the best strategy for their business. The major benefit of the LLC is the freedom and control provided by the operating agreement, so skipping the drafting of the operating agreement defeats the purpose.

This is especially problematic because often times the default rules do not make the most sense for a particular business. For instance, most actions under the default rules require only a simple majority vote of the members to be approved. Drafting an operating agreement would allow the members to introduce supermajority votes and other control provisions on more important issues. Similarly, another central issue to any business is the distribution of profits.

In Illinois, the default rule is that distributions must be made in equal shares to all of the members. This rule seldom makes sense for businesses in which different members have invested different amounts. People often want to tie their distribution to the members’ stakes in the company, which requires a separate provision in the operating agreement. Of course, these are just some of the many choices that operating agreements allow LLC members to make about their business and its structure.

If you are in the process of forming an LLC and need an operating agreement tailored to your business’s specific concerns, contact an Illinois corporate law attorney. We help businesses across the northwest suburbs in towns like Rolling Meadows, Palatine, Schaumburg, and Inverness.

About the Author: Attorney Jay Andrew is founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.

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