Commercial Litigation and Arbitration

Email Authentication — Circumstantial Evidence

The prosecution in People v. Whicker, 2007 Cal. App. Unpub. LEXIS 5197 (Cal. App. June 26, 2007), was evidently unable to authenticate an email in the traditional way. (See Internet and Email Evidence on the Recent Articles page for a description of the customary ways to authenticate email evidence.) The witness, moreover, was hostile and said she couldn’t remember whether she had sent it, although ‛I won’t say I didn’t because I don’t remember for sure if I did or not.“ She acknowledged, however, that there were a few emails that she and the ostensible recipient sent back and forth. She also said that the document ‛does look like my style of writing.“ The recipient then testified that she remembered receiving the email and had responded to it. In approving admission of the email, the California Court of Appeals stressed the witness’s acknowledgment that the email appeared to be written in her ‛style“ and that the content of the email — which was familiar to the witness — would by its nature be known to few others. ‛To be sure, the foundation would have been firmer if the prosecutor had confirmed that this was a fact known to [the witness], but he showed her the document and she identified no inaccuracies in it.“ The Court also relied on the fact that the witness did not affirmatively disclaim authorship, only recollection. The government's failure to use the customary means of authentication may be explainable other than by lack of preparation, or it may simply have been a tactical blunder, but, either way, it generated a useful opinion.

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