Email / Instant Messages — Authentication

The defendant in United States v. Gagliardi, 506 F.3d 140 (2d Cir. 2007), used email and instant messaging to attempt to entice a minor into prohibited activity. Appealing his conviction, he contended that the electronic communications were inadequately authenticated by testimony of an informant and government agent. Rejecting the contention, the Second Circuit stressed that “[t]he bar for authentication of evidence is not particularly high:”

Generally, a document is properly authenticated if a reasonable juror could find in favor of authenticity.... The proponent need not "rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be."

[T]he standard for authentication is one of "reasonable likelihood"... and is "minimal”....

In this case, both the informant and Agent Berglas testified that the exhibits were in fact accurate records of [defendant’s] conversations with Lorie and Julie. Based on their testimony, a reasonable juror could have found that the exhibits did represent those conversations, notwithstanding that the e-mails and online chats were editable. The district court did not abuse its discretion in admitting the documents into evidence.

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