Emails - use as evidence

On Feb 28, 11:38 pm, "John A. Weeks III" <j...@johnweeks.com> wrote:
> In article <e2rau2d45ct83tlh11rf4rpa03olai7...@4ax.com>,
>  "Relayer" <relayer...@aol.com> wrote:

> > I am about to introduce incriminating emails I have in a divorce and
> > custody action as evidence. I have copies of the emails. What else do
> > I need to have/be prepared to do to ensure they are accpeted as
> > authentic and as evidence?
>
> How do you plan to show that they are authentic?  Anyone can
> type up a bunch of E-mails and put someone else's name on
> them.

For a document to be admitted into evidence, the law in most states typically doesn't require such detailed scientific proof of its non-fakeability as John then goes on to recite in detail.   To lay a sufficient foundation regarding authenticity of a document to allow it into evidence, a witness who claims to have personal knowledge of the document's authenticity has to testify under oath that the thing is what it appears to be.   That's it.

So, if the proponent of the evidence (OP, the one who actually received the email and wants to have it admitted) gets on the stand and swears, "This is an exact copy of an email I received on the PC in my kitchen from my ex-wife at 6:51 pm on March 12, 2006, as indicated in the email headers", that is sufficient authentication in most jurisdictions to offer it into evidence,  Of course, the opponent is free to cross-examine the witness about the details of his computer email system, its openness to spoofing, whether the purported email was faked or altered, etc., but that just goes to its weight, not its admissibility.   Besides, most juries are clueless about that kind of stuff anyway and the counterarguments about possible fakery would go right over their heads.

Email is no different in that sense than a fax, a photocopy, a photograph, digital or otherwise, or even a purported original handwritten document with an ink signature.   Any of the above can be tampered with, altered, etc.   Signatures can be forged, words or entire paragraphs can be whited out with correction liquid and then photocopied cleanly, persona non grata can be digitally erased from a family photo, etc. or their head can be pasted onto someone else's body, just to name a few ways evidence can be faked.   But simply showing the fact that evidence _can_ be faked (by the one cross-examining it) is not enough to conclusively prove that it _was_ faked.   The burden of proving that evidence was faked lies with the one opposing the evidence, but even if his proof of fakery is convincing, the faked document STILL comes into evidence thru the proponent's authentication testimony.

>  Just because they came by E-mail doesn't mean that
> the person whose name is on them is the real sender.  Do you
> have log files from the servers to prove that any mail even
> flowed between the sender and the recipient?  Even if you can
> prove that the E-mail was sent, how can you prove that it hasn't
> been tampered with or edited?

OP doesn't have to do that.  Rather, it would be up to the ex (or her atty) to argue reasons why they think the document in evidence _was_ tampered with.

> Unless the sender admits writing them and sending them, then
> you might have little more than a type of hearsay.

Hearsay is an admissibility question, not an authenticity question.  Even if a document is genuine, it may not be admissible in evidence unless it is relevant, probative of some disputed issue, and not barred by some other rule, such as the hearsay rule.   The hearsay rule bars admission into evidence of any out-of-court statement (oral _or_ written) that is offered for the purpose of proving the truth of the facts recited in that statement.  But if an out-of-court statement is offered for some other purpose, such as to prove notice, or a promise, or belief, it is not hearsay and may be admitted for that other purpose, assuming its authenticity has been sufficiently established by testimony.

But a document which contains admissions by a party opponent (OP's ex, frex) is admissible in most jurisdictions under an exception to the hearsay rule.   In sone jurisdictions, such as under the Federal rules, it is in fact considered non-hearsay rather than hearsay-but-admissible-under-an-exception (a technical distinction which I have never figured out why it makes any difference).

> In corporate settings, you can get backup tapes from the servers,
> pull up backups and log files, and establish a chain of custody.
> Some E-mail systems use public key cryptology, so you really can
> authenticate that the mail came from who it says it came from,
> and that it hasn't been tampered with.  But if you are talking
> good old PC to PC E-mail via Yahoo or some other Yeah-hoo, then
> you have a difficult challenge.

All of that may be so if we are talking about a multizillion-dollar Enron case or a murder case, or if this was the custody hearing for Anna Nicole Smith's baby, but it is highly unlikely anyone will even raise such questions or require such detailed proof in your garden variety divorce-and-custody case.  And if they do, all OP has to do to uphold his authentication of the document is to stick to his guns and continue to testify that the document is what it purports to be.

> Then again, you might not get challenged.  Some folks, especially
> older folks, accept what looks like it came from a computer as
> the gospel.  Proof by intimidation might work in this case.

John's right about the cluelessness of most foax about the ease of computer forgery, but characterizing this as "intimidation" may be a stretch.  Unless the opposing cross-examiner can poke holes in the witness' story, or show him to be an evasive or weasely type such as would affect his credibility, all we're talking about is a simple, honest witness (himself maybe relatively clueless about what goes on inside his computer) saying that he received an email from his ex and that the copy he hands to the clerk is an exact printout of what he received.

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