Circumstantial Evidence of Email Evidence — Massachusetts Supreme Court

From Commonwealth v. Purdy, 2011 Mass. LEXIS 169 (Mass. Sup. Ct. April 15, 2011):

Authentication of e-mail messages. The defendant argues that the judge erred in admitting the ten e-mail exchanges because the evidence was insufficient to authenticate them as having been authored by him. "The requirement of authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Mass. G. Evid. § 901(a) (2011). See Commonwealth v. Nardi, 452 Mass. 379, 396 (2008); Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977); M.S. Brodin & M. Avery, Massachusetts Evidence § 9.2, at 580 (8th ed. 2007). See also Fed. R. Evid. § 901(a) (2010) (same). "The role of the trial judge in jury cases is to determine whether there is evidence sufficient, if believed, to convince the jury by a preponderance of the evidence that the item in question is what the proponent claims it to be. If so, the evidence should be admitted, if it is otherwise admissible." M.S. Brodin & M. Avery, Massachusetts Evidence, supra. See Commonwealth v. Nardi, supra. Here, because the relevance and admissibility of the communications depended on their being authored by the defendant, the judge was required to determine whether the evidence was sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the e-mails. See Commonwealth v. Leonard, 428 Mass. 782, 785-786 (1999); Mass. G. Evid. § 104(b)(1) & note, at 11. Evidence may be authenticated by direct or circumstantial evidence, including its "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics." Mass. G. Evid. § 901(b)(1), (4). Fed. R. Evid. § 901(b)(1), (4). See Commonwealth v. Nardi, supra.

[Footnote] 5. Evidence of authorship would not necessarily have been a precondition of admissibility if the prosecution had offered the e-mails, which the defendant acknowledged having read, as evidence of the defendant's knowledge of the nature of the massage business in the salon. See Commonwealth v. Monahan, 349 Mass. 139, 168 (1965). If offered for this purpose, the prosecution would not need to show authorship of the e-mails, but would need only to authenticate the communications as accurate reproductions of the messages that were received and sent from the defendant's computer and e-mail address.

Here, the defense moved in limine to preclude the Commonwealth from introducing the e-mails in evidence. Defense counsel represented that the defendant shared his computer with others at the salon and that he denied authoring the e-mails, but did not challenge the prosecutor's representation that the e-mails she sought to offer were taken from the hard drive of the computer owned by the defendant and were signed with the defendant's first name or his first initial. The judge denied the motion in limine based on the prosecutor's unrebutted representation. At the time the e-mails were offered and admitted in evidence, the Commonwealth not only had provided evidence to support its representations but also had elicited evidence from Detective Murphy that the defendant knew and provided from memory all the passwords necessary to access the computer's programs, and that the e-mails originated from an e-mail address that the defendant used and that bore his name.

[Footnote] 6. The Commonwealth also provided evidence through the testimony of Detective Murphy that the printed e-mails offered in evidence were accurate reproductions of the original electronic evidence extracted from the defendant's computer.

The Commonwealth, however, did not furnish direct evidence that the defendant had authored any of the ten e-mails admitted in evidence; there was no testimony that anyone observed him typing any of the e-mails or that anyone had discussed any of the e-mails with him. The defendant contends this evidence is insufficient to establish that the e-mails were what the Commonwealth claimed them to be, that is, e-mails authored by the defendant. We disagree, and we conclude that the evidence was sufficient to authenticate the e-mails as having been authored by the defendant.

A judge making a determination concerning the authenticity of a communication sought to be introduced in evidence may look to "confirming circumstances" that would allow a reasonable jury to conclude that this evidence is what its proponent claims it to be. See Commonwealth v. Hartford, 346 Mass. 482, 488 (1963). In the context of telephone conversations, where a witness has received a telephone call and cannot identify the caller's voice, evidence that the caller identified himself as the defendant is not sufficient to authenticate the conversation. See id. ("the mere fact that the speaker said he was the defendant was not enough to render the conversation admissible"). See also Bond Pharmacy, Inc. v. Cambridge, 338 Mass. 488, 491 (1959) ("The fact that the person initiating the call says he is A is not enough to make the conversation admissible"); Commonwealth v. Harris, 232 Mass. 588, 591 (1919). But other "confirming circumstances" may provide sufficient evidence that the defendant was the caller. See Commonwealth v. Hartford, supra. Thus, a witness who lived in the same home as the victim was allowed to testify about the statements made by a caller who claimed to be the defendant, where she had previously answered other telephone calls from a person who identified himself as the defendant, the behavior of the victim and defendant on these previous occasions corroborated the identity of the caller, telephone records showed that a call had been placed from the defendant's telephone number to the victim's residence around the time of the call in question, and the defendant said he had telephoned the victim's residence that day. Id. at 487-488. Similarly, where a witness placed a telephone call to a "land-line" telephone number located in an apartment in which the defendant was the only male resident, where the male answering the telephone had the same voice as the male who had answered previous telephone calls to that telephone number, and where the male provided information during the telephone call that confirmed his identity as the defendant, the telephone call was sufficiently authenticated and properly admitted in evidence. See Commonwealth v. Anderson, 404 Mass. 767, 770 (1989).

In the context of written letters, where a witness has received a letter and cannot identify the writer's handwriting or signature, evidence that the writer identified himself as a particular individual is not sufficient to authenticate the letter. See Irving v. Goodimate Co., 320 Mass. 454, 459 (1946); Commonwealth v. Harris, supra; Nunes v. Perry, 113 Mass. 274, 275-277 (1873). But where a witness identified the handwriting in a letter as that of the defendant, see Pataskas v. Judeikis, 327 Mass. 258, 260 (1951), or where the letter was received as a reply to a letter sent by the witness to a particular addressee, see M.S. Brodin & M. Avery, Massachusetts Evidence, supra at § 9.3.2 (b), at 583-584 & n.8, citing Connecticut v. Bradish, 14 Mass. 296, 300 (1817); 7 J. Wigmore, Evidence § 2153, at 753 (Chadbourn rev. ed. 1978) (reply letter rule "universally accepted"), or where other confirming circumstances are present, see Irving v. Goodimate Co., supra, a letter can be authenticated and properly admitted in evidence.

While e-mails and other forms of electronic communication present their own opportunities for false claims of authorship, the basic principles of authentication are the same. See United States v. Safavian, 435 F. Supp. 2d 36, 41 (D.D.C. 2006) ("The possibility of alteration does not and cannot be the basis for excluding e-mails as unidentified or unauthenticated as a matter of course, any more than it can be the rationale for excluding paper documents" [emphasis in original]); Simon v. State, 279 Ga. App. 844, 847 (2006) ("e-mail offers unique opportunities for fabrication [but] it is held to the same standards of authentication as other similar evidence"). Evidence that the defendant's name is written as the author of an e-mail or that the electronic communication originates from an e-mail or a social networking Web site such as Facebook or MySpace that bears the defendant's name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant. See Commonwealth v. Williams, 456 Mass. 857, 868-869 (2010). There must be some "confirming circumstances" sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the e-mails. See Commonwealth v. Hartford, supra at 488. See also Commonwealth v. Williams, supra.

Here there were adequate "confirming circumstances" to meet this threshold: in addition to the e-mails having originated from an account bearing the defendant's name and acknowledged to be used by the defendant, the e-mails were found on the hard drive of the computer that the defendant acknowledged he owned, and to which he supplied all necessary passwords. While this was sufficient to authenticate the e-mails in the absence of persuasive evidence of fraud, tampering, or "hacking," there was additional evidence of the defendant's authorship of most of the e-mails. At least one e-mail contained an attached photograph of the defendant, and in another, the author described the unusual set of services provided by the salon when he characterized himself, among other things, as a "hairstylist, art and antiques dealer, [and] massage therapist." The defendant's uncorroborated testimony that others used his computer regularly and that he did not author the e-mails was relevant to the weight, not the admissibility, of these messages. See Commonwealth v. Mahoney, 400 Mass. 524, 529-530 (1987); Chartrand v. Registrar of Motor Vehicles, 345 Mass. 321, 325 (1963), S.C., 347 Mass. 470 (1964). The judge did not err in concluding that the e-mails were authenticated as having been authored by the defendant.

[Footnote] 7. The confirming circumstances in this case are stronger than those in Commonwealth v. Williams, 456 Mass. 857, 868-869 (2010), where we concluded that messages sent from the MySpace Web page of the defendant's brother were not properly authenticated as having been authored by the defendant's brother. In that case, we noted that there was no testimony regarding how secure a MySpace Web page is, who can access it, or whether codes are needed for such access. Id. at 869. Moreover, "while the foundational testimony established that the messages were sent by someone with access to [the defendant's brother's] MySpace Web page," the author of the messages did not identify himself with the name of the defendant's brother (or any other name). Id. Unlike in Commonwealth v. Williams, supra, where the messages could have been sent from any computer or device with access to the Internet and there was no evidence of how authorship might have been limited, the e-mails in this case were found on a computer belonging to the defendant and for which passwords were required.

While we noted in Commonwealth v. Williams, supra at 869, that the Commonwealth did not offer expert testimony that the defendant's brother was the only person who could communicate from that Web page, we do not suggest that expert testimony or exclusive access is necessary to authenticate the authorship of an e-mail. Nor do we suggest that password protection is necessary to authenticate the authorship of an e-mail, even though there was such protection here.

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