On Mar 3, 7:34 am, Herb <her...@mail.com> wrote:
> There is the matter of whether the emails were addressed to you, or
> to the spouse.
Preliminary note: the rules of evidence still trip up a lot of lawyers. I don't expect pro se litigants such as OP, to have much of a chance of doing everything right to get a contested document into evidence, if he's up against a lawyer on the other side. So I don't want OP to think that ALL he has to do is testify that this is an email he received from his ex-wife, and his troubles are over. There are lots of other things that have to be considered, besides "authenticity", before a document will be received into evidence by the judge. And being received into evidence just means it is part of the body of facts that the factfinder will be allowed to consider in deciding the issues, NOT that it is certifiably true and accurate. That is for the jury still to decide at the END of the case.
Of course Herb's right, but that question goes to admissibility, not to authenticity of the document, which is all OP asked about and all I was responding to in my first reply to OP's post. If the emails were allegedly sent by OP's wife, to him or anybody else, they are non-hearsay as an admission of a party opponent. That means they could come into evidence based solely on OP's testimony that he downloaded and printed them from a computer and email account he legally had access to, and that they are an unmodified printout of what came to his computer. If the ex denies sending them, that would go to their weight, not their admissibility. "Authentication" of evidence doesn't mean you've proven beyond a shadow of a doubt that it is what it purports to be; just that you've testified under oath that it is. The judge or jury will decide at the end of the case whether it _really_ is authentic or not, based on all the evidence from both parties. But they will do so, WITH the questioned document in front of them, it having been admitted into evidence based on OP's authentication testimony. Thinking otherwise is putting the cart before the horse.
Of course, there is a big difference between what is MINIMALLY required, legally, to authenticate a document to get it admitted into evidence, and what is PRACTICALLY required, by common sense, to get a judge or jury to actually BELIEVE that the document is an incriminating admission by the party opponent. The latter is highly fact-specific and I wouldn't begin to suggest whether OP or his ex have a better chance of establishing their credibility to the factfinder, through this or other means, such that their side is the one that will be believed. That's what trials are for.
But if the emails were sent by someone else _to_ OP's ex, they would be hearsay, and OP would not be able to use them as substantive evidence all by themselves. He could still use them to cross-examine his ex, asking her whether she received them and whether they are authentic copies of what she received, but he would not be able to use the emails themselves in evidence if she denied receiving them. Even if she admitted receiving them, they could NOT be used as evidence of the facts they contain, e.g. if they are from her paramour saying "I love you" OP can't use them to prove that the other man loves OP's ex-wife. But if they say something like, "I'll meet you behind the library Tuesday at 9:30 pm" and OP followed his wife Tuesday night after she suspiciously told him she was going out to return a book to the library before it closed (e.g. if she doesn't read), OP could then use the incriminating email to show plan, motive, and opportunity for the clandestine meeting. The permutations are endless and really go beyond OP's original question, which was just how to "authenticate" the printouts so he could use them in evidence, assuming they are OTHERWISE admissible for some relevant purpose, not unduly and unfairly prejudicial, and non-hearsay.
> To the group: does the OP have the right to use emails that were
> exchanged between the spouse and a third party? Is the ownership of
> the computer the determining factor (i.e., whether the spouse left it
> behind, or left it unattended - or if the computer belongs solely to
> the OP - or if the computer is owned jointly but the email account
> belongs to the spouse)?
This is a gray area of rapidly changing law, but IMO it should be tested on the same basis as snailmail. If OP's ex left a love letter from her gigolo lying on her desk in plain view, in a room of the house that OP had equal and legal access to, yes he can take and use it as evidence against her. Even if she had the letter in a locked drawer in her personal desk at her workplace and OP broke in and stole it, the letter MAY still be admissible in evidence, although OP could suffer other possible consequences for his illegal steps in accessing it; OR the judge may rule it inadmissible due to the means of its acquisition. Same with email. If it was sent to her on a joint email account where OP and his ex both knew her password and/or where the received and sent mails were clearly visible on their computer (after being saved) without any password, IMO they are fair game. If OP stole her password or hacked her private email acocunt, though, other consequences may ensue.
> As a general question: can information gained by the use of "snooping"
> software or devices be used as evidence, and is ownership of the
> computer a determining factor?
Gray area. See above.
--
This posting is for discussion purposes, not professional advice.
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Mike Jacobs
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