Court-Martial Trial Practice Blog
In my view it’s all too easy for emails to be authenticated in courts.
Emails can be spammed, altered, and a lot of other things, including cut-and-paste which is all too common.
Here is a note from Prof. Colin Miller about a case* in Texas that appears to take a somewhat decent approach in questioning how easy it is to fake or manipulate emails “printouts.”
According to the court,
Electronic evidence may be authenticated in a number of different ways….Printouts of emails have “been admitted into evidence when found to be sufficiently linked to the purported author so as to justify submission to the jury for its ultimate determination of authenticity.”…With regard to printouts of emails, the Texas Court of Criminal Appeals has instructed “[t]hat an email on its face purports to come from a certain person’s email address” is typically not sufficient to support a finding of authenticity without additional links.
Applying this standard, the court concluded that
In this case, the victims’ mother denied sending Chin the email in question, and the only link between the victims’ mother and the email was the email address. When discussing the admissibility of the evidence at trial, the trial court determined that Chin had not met his threshold burden, noting:
Because it looks to me like it’s very possible that somebody xeroxed one thing on top of another. And you cannot say that’s an original. And she’s denying that she ever did it.
So unless you have some record that’s going to be more authentic than that, then I’m not allowing that. I can go back there right now and take my email and cut off the to and the from and then place it over another statement and xerox it. And that doesn’t mean that that’s an authentic e-mail.
Because the only link between the email in question and the victims’ mother was the email purporting on its face to have been sent from her email address, the trial court did not abuse its discretion in excluding the email from evidence[.]