Circumstantial Authentication of Email Evidence

From Commonwealth v. Amaral, 78 Mass. App. Ct. 671 (2011):

The actions of the defendant himself served to authenticate the e-mails. One e-mail indicated that Jeremy would be at a certain place at a certain time and the defendant appeared at that place and time. In other e-mails, Jeremy provided his telephone number and photograph. When the trooper called that number, the defendant immediately answered his telephone, and the photograph was a picture of the defendant. These actions served to confirm that the author of the e-mails and the defendant were one and the same. See Mass. G. Evid. § 901(b)(6).

Footnote 6 Section 901 of Mass. G. Evid. provides as follows: "(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this section: . . . (6) Telephone conversations. A telephone conversation, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if, (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called . . . ."

Commonwealth v. Williams, supra, involving a MySpace social networking Web site account, is not to the contrary. "Analogizing a MySpace Web page to a telephone call, a witness's testimony that he or she has received an incoming call from a person claiming to be 'A,' without more, is insufficient evidence to admit the call as a conversation with 'A'" (emphasis added). Id. at 869. Here, as explained above, there was more.

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