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Criminal Litigation

Introducing Email Evidence at Trial

By Ryan Malkin – December 18, 2013


According to a recent Pew Institute survey, over 88 percent of adults send emails. Given the proliferation of email, it is more than likely that emails were sent or received that will assist you at trial, whether they are inculpatory or exculpatory. As countless circumstances exist where the defense or prosecution would like to introduce emails into evidence at trial, here are a few options on how to do so.


Authenticating the Emails
Given the anonymous nature of the Internet and potential for unreliability, the biggest hurdle to overcome when introducing emails at trial is authentication. After all, anyone can open an email account with any name. Unless the author of an email testifies that he or she drafted and sent the email—or someone who observed the author drafting and sending the email testifies—authentication under Federal Rule of Evidence (FRE) 901(b)(1) is “impossible.” United States v. Fluker, 698 F.3d 988, 998 (7th Cir. 2012). However, authentication may be established circumstantially by “distinctive characteristics” including information only the sender would know, nicknames, or internal patterns “taken in conjunction with other circumstances.” For instance, call a witness to testify with “significant knowledge” of the author’s involvement. Perhaps the author of the email closed with a nickname known only by the victim. United States v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000). An email may be admissible if coupled with testimony that the author of the email called the testifying party to discuss “the same requests that had been made in the email.” Ultimately, “the task of deciding the evidence’s true authenticity and probative value [should be] left to the jury.”


Technological footprints are also helpful. An Internet protocol address, or IP address, identifies which computer sent an email. This information is quite useful when combined with testimony from the service provider that the IP address from where the email was sent is the party’s residence or office and a witness can establish that the party was at the location at the exact time the email was sent. Once you can authenticate one email as being from the author’s IP address, it is sufficient to authenticate additional emails “by comparing those emails with other emails from the same [IP] [] authenticated through distinctive characteristics.” United States v. Safavian, 435 F. Supp. 2d 36, 40–41 (D.D.C. 2006). So once you call a witness or have other evidence to identify a conversation and connect it to the author, it is likely “sufficient to allow a reasonable juror to conclude that all other [emails] associated” are also sent by that author. United States v. Kilpatrick, 2012 WL 3236727 (E.D. Mich. Aug 7, 2012).


Similarly, an investigator may also testify to retrieving emails from the author from an email’s hard drive. The evidence from a computer drive can establish that an email did indeed originate from that party’s computer. Sure, an argument can be made that it is possible someone accessed the author’s email account and sent the messages. But again, evidence and facts may make the likelihood of this to be a factual issue for the jury to determine.


Overcoming Hearsay Issues
In some cases, emails may also be introduced under the business-records exception to the hearsay rule. FRE 803. If an email was sent from a business account, emails may be introduced if the company keeps emails in the regular course of its business and if authenticated by the custodian of records. However, one court would not admit emails into evidence under the business-records exception because there was no evidence of a “business duty to make and regularly maintain records of this type.” United States v. Ferber, 966 F. Supp. 90, 98 (D. Mass. 1997). Without such evidence, “virtually any document found in the files of a business which pertained in any way to the functioning of that business would be admitted willy-nilly as a business record.” Nonetheless, the emails were introduced as a present sense impression. But with the proper foundation, emails retrieved from a corporate computer will likely “fit squarely within the business record exception to the hearsay rule.” United States v. Lovett, U.S. Dist. LEXIS 49574 (D. Nev. 2013).


Although emails are subject to hearsay limitations, courts have admitted emails into evidence as a statement of a party opponent. FRE 801(d)(2). If the emails were written by a party and are being offered against that party, they are admissible. Entire email chains—which include reply emails by other parties—may be admissible as well for context and not for the truth of the matter asserted. Additionally, emails may be admitted into evidence as adoptive admissions if the “context and content of certain e-mails demonstrate that [the defendant] ‘manifested an adoption or belief’ in the truth of the statements,” such as if he or she forwarded the emails. Safavian, 435 F. Supp. 2d at 43. However, the forwarded emails must “clearly demonstrate [] adoption of the contents” to be admitted under Rule 801(d)(2)(B).


Emails may also be introduced as non-hearsay if they go to motive, intent, identity, or state of mind, or help to explain conduct or refute the possibility of mistake or misunderstanding. For instance, an email may explain why the drafter made certain representations. But the jury will be instructed, in substance, that emails “may be considered only insofar as they may have had some impact on [the drafter’s] state of mind or provided [the drafter] with a motive.” Ultimately, as long as emails remain part of everyday life, they will continue to be an important piece of evidence at trial.


Keywords: criminal litigation, email, evidence, authentication, hearsay


Ryan Malkin is with Malkin Law P.A. in New York, New York, and Miami, Florida.


 
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