Commercial Litigation and Arbitration

Circumstantial Email Authentication — Testimony from One User of a Shared Account That Emails Bore the Typical Signature of One Defendant (Sender) and Contents Reflected Matters Known to Her Husband (On Whose Behalf The Messages Were Sent)

Commonwealth v. Johnson, 470 Mass. 300, 2014 Mass. LEXIS 955 (Mass. Dec. 23, 2014):

This case concerns the constitutionality of the criminal harassment statute, G. L. c. 265, § 43A (a), and its application to acts of cyberharassment among others. Specifically, we consider whether a pattern of harassing conduct that includes both communications made directly to the targets of the harassment and false communications made to third parties through Internet postings solely for the purpose  [*2] of encouraging those parties also to engage in harassing conduct toward the targets can be constitutionally proscribed by the statute. We also consider whether, to the extent that this pattern of conduct includes speech, that speech is protected by the First Amendment to the United States Constitution or is unprotected speech integral to the commission of the crime.

The defendants, William and Gail Johnson, were both convicted of criminal harassment. William2 was also convicted of making a false, or "frivolous," report of child abuse, G. L. c. 119, § 51A (c). Among other things, the defendants' conduct included posting information about the victims online along with false statements about items that the victims allegedly either had for sale or were giving away, with the object of encouraging unwitting third parties to repeatedly contact and harass the victims at their home and on their telephone. The defendants also anonymously sent hostile and ominous communications directly to the victims.

2   The  [*3] defendants and the victims are both married couples. Where appropriate the defendants and the victims are referred to by their first names given the common last name between each married couple.


6. E-mail authentication. The defendants moved in limine on the first day of trial to exclude e-mail correspondence between Gail and Colton, arguing that the circumstances were insufficient to permit authentication or confirm Gail's identity as the sender. During voir dire on the issue, Colton testified that the defendants shared a joint e-mail account with which he had exchanged many friendly e-mails for nearly a decade. Regarding the proposed evidence, Colton testified that he understood these e-mails to be from Gail, on William's behalf, as they were sent after William had enlisted Colton in the scheme, were signed using Gail's typical signature, and referenced Colton's responses to inquiries about the harassment scheme.16 The judge ruled that the preponderance of the evidence authenticated the e-mails and laid a foundation for their admissibility. We agree.

16   These inquiries included references to Craigslist postings, a telephone conversation  [*36] between Colton and Gail, the Lyonses' personal identifying information, and "Mr. Meany," which Colton understood to be Gail's way of referencing Jim.

"Evidence may be authenticated by direct or circumstantial evidence, including its '[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics.'" Commonwealth v. Purdy, 459 Mass. 442, 447-448 (2011), quoting Mass. G. Evid. § 901(b)(4) (2013). The voir dire of Colton presented sufficient evidence that some of the e-mails sent to Colton were authored by Gail given the long-standing relationship between Colton and the defendants, the defendants' prior use of the e-mail address at the time of the scheme, and the referencing of the harassing acts in the e-mails.17

17   These electronic mail messages (e-mails) (in addition to telephone conversations between Gail and Colton) were also sufficient to establish that Gail knowingly participated in the harassing conduct with the same malicious intent as her husband. Accordingly, the evidence of Gail's involvement as a joint venturer in the scheme was sufficient to survive a motion for a required finding of not guilty. The judge's ruling to this effect was not in error.

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