In New Jersey, if a lawyer handling a domestic violence hearing wishes to present credible evidence to the court to strengthen his or her case, he or she should be given the opportunity to do so. Although the court will not consider each and every piece of evidence a party tries to submit, it will consider certain business records such as bank account statements. What if a party is being wrongly accused of domestic violence and tries to present his or her E-Z Pass records to prove that he or she was in a particular spot at a certain time? Will the court consider the E-Z Pass records over another attorneys’ objection? The case of S.S.S. v. M.A.G. addressed this issue for the first time. Let’s take a closer look.
In the case the parties were in a dating relationship, but broke up in December 2008. On October 19, 2009 the girlfriend filed a domestic violence complaint in which she alleged that on October 5th, the boyfriend came to her school where he “grabbed her arm and pushed her into a wall.” The girlfriend further stated that the boyfriend had been calling and texting her since the incident and made comments that she and her new boyfriend would soon find out what was going to happen to them.
When the girlfriend filed the complaint, she also indicated that the boyfriend had sexually assaulted her in August 2007; however, she did not report that incident to the police. Additionally, the girlfriend indicated that the boyfriend had pushed her and pulled her hair multiple times while they were dating. As a result, the judge granted the girlfriend a temporary restraining order and ordered a final hearing to take place on October 23, 2009.
At the hearing, the girlfriend testified that on October 4th, the boyfriend called her asking to speak to her the next day. The girlfriend assumed that he wanted to talk about visiting the daughter they had put up for adoption yet that was not the case. On October 5th, the boyfriend picked up the girlfriend at 9:00am after she left class at Rutgers-Newark. Even though she told him she didn’t have much time to talk, he drove to a motel.
According to the girlfriend, once they got to the motel the boyfriend took her cell phone from her and yelled at her for seeing other guys. She stated that he cursed her out, called her a whore, grabbed her by the arm, and shoved her against the bed board causing a bruise. The girlfriend testified that the assault occurred in Jersey City at 9:30am and that she was back at school in Newark by 10am.
As a response, the boyfriend testified that the girlfriend had lied about the entire situation. He even offered the judge a letter written by his employer, which revealed that he arrived at work at 8:35am on October 5th. Additionally, the boyfriend offered into evidence his E-Z Pass records showing that he crossed the Bayonne Bridge in Brooklyn at 8:16am. Therefore, he argued that it was impossible that he got to the girlfriend’s school at 9am. However, the judge refused to consider the E-Z Pass records. Instead, the trial court found the girlfriend’s testimony to be credible and entered a final restraining order in order to protect her from future acts of domestic violence. The boyfriend appealed.
On appeal, the boyfriend argued, among other things, that the trial court erred by refusing to admit into evidence his E-Z Pass records and the Appellate Division agreed. The Appellate Division stated that the E-Z Pass records should have been considered because they would have revealed the precise time that the boyfriend crossed the bridge and would have corroborated his story. Had he truly crossed the bridge at 8:35am, it would have been impossible for him to have been in Jersey City at the time he allegedly assaulted the girlfriend in the motel. As a result, the Appellate Division reversed the findings of the lower court and remanded the case for a new trial.
The main takeaway from the case is that a court must consider a party’s E-Z Pass records if presented as evidence to prove where the party was at a particular point in time. To discuss this issue further, please contact my office today.