Email Authentication — Alabama Adopts Circumstantial Evidence Approach of Texas, Delaware, Idaho, Kansas, Mississippi, Indiana
Culp v. State, 2014 Ala. Crim. App. LEXIS 102 (Ala. Crim. App. Nov. 21, 2014):
Robert N. Culp, Jr., appeals his conviction for domestic violence in the second degree, a violation of § 13A-6-131, Ala. Code 1975, and his resulting sentence of five years' imprisonment. The circuit court suspended the term of imprisonment and placed Culp on probation for three years. The circuit court also ordered Culp to pay a $1,000 fine, court costs, restitution, and to make a $750 contribution to the Alabama Crime Victims Compensation Fund. The circuit court further ordered Culp to have no contact with the victim in the case.
The evidence admitted during Culp's trial tended to establish that on April 8, 2008, Brandis Hand was living with Culp, her boyfriend, in Henry County. Hand was planning to go to a Walmart department store when Culp told her that he would not allow her to go because she was "always spending his money." (R. 180.) Hand told Culp that she was leaving him and taking her dog with her. Hand picked up the dog and began [*2] opening the front door when Culp reached over Hand's head and pushed the door closed. Culp struck Hand on the left side of her jaw with his fist. Hand began bleeding from her mouth and she was unable to talk because her jaw "was cocked over." (R. 221.) Culp told Hand that she had bitten her tongue. Hand attempted to get Culp to dial emergency 911, but he would not because he said that "[h]e would go to jail." (R. 223.) Hand wrote notes to communicate with Culp, and, while Culp was in his bedroom, she left their trailer and drove to the home of her friend Chase Jones. Jones drove Hand to the hospital.
Dr. Greg Bess, a maxillofacial surgeon, operated on Hand's jaw. When Dr. Bess first saw Hand, "she had some swelling, and her bite was way off. Her jaw was off to the side." (R. 194.) Hand told Bess that she had injured herself when she fell down while walking her dog. Dr. Bess determined that Hand had two fractures of her lower jaw; one fracture was on the lower left side and the other fracture was on the lower right side. Dr. Bess used titanium plates and screws to put Hand's jaw back "in its normal position." (R. 198.)
Culp called his friends Wally Howerton and Jimmy Danzby to testify about [*3] a trip that Hand and Culp had taken to Atlanta with several of their friends in July 2008. Culp also called Jason Selva, a narcotics investigator with the Henry County Sheriff's Office, who testified about his interactions with Hand when she turned herself in on a warrant for theft of property in the first degree. Selva also testified that Hand's reputation for violence was bad, as was her reputation for truth and veracity.
Culp next asserts that the circuit court erred in admitting e-mails into evidence. State's exhibit 4 was a collection of e-mails that Culp and Hand had sent to each other in the months following the assault. He specifically contends that the admission of that exhibit was erroneous because: 1) the e-mails were never properly authenticated; 2) the e-mails were not relevant to the case; 3) the prejudicial effect of the e-mails outweighed any probative value they possessed; and 4) the content of the e-mails constituted inadmissible hearsay.
"Alabama courts have often stated that a trial court has substantial discretion in determining whether evidence is admissible and that a trial court's decision will not be reversed unless its determination constitutes a clear abuse of discretion." Hosch v. State, [Ms. CR-10-0188, November [*11] 8, 2013] So. 3d , (Ala. Crim. App. 2013) (citing Ex parte Loggins, 771 So. 2d 1093, 1103 (Ala. 2000)).
Culp contends that the e-mails were never properly authenticated. To date, no Alabama case has directly addressed the proper authentication of e-mails; however, other states have addressed the issue. In State v. Koch, 157 Idaho 89, 334 P.3d 280 (2014), the Idaho Supreme Court considered for the first time the foundational requirements for admitting e-mails. The Court wrote:
"Because Idaho Rule of Evidence 901 is based on Federal Rule of Evidence 901, how other jurisdictions have interpreted the federal rule's requirements with regard to the admission of e-mails and text messages is instructive in this case. Other jurisdictions have recognized that electronic evidence may be authenticated in a number of different ways consistent with Federal Rule 901 and corresponding state statutes. Courts have not required proponents offering printouts of e-mails, internet chat room dialogues, and cellular phone text messages to authenticate them with direct evidence, such as an admission by the author or the testimony of a witness who saw the purported author typing the message. See, e.g., United States v. Fluker, 698 F.3d 988, 999 (7th Cir. 2012). Rather, courts have held that circumstantial evidence establishing that the evidence was what the proponent claimed it to be was sufficient. See, e.g., State v. Thompson, 777 N.W.2d 617, 624 (N.D. 2010) (providing a comprehensive review of other [*12] jurisdictions' authenticity requirements for electronic communications). Circumstantial proof might include the e-mail address, cell phone number, or screen name connected with the message; the content of the messages, facts included within the text, or style of writing; and metadata such as the document's size, last modification date, or the computer IP address. See Fluker, 698 F.3d at 999; United States v. Siddiqui, 235 F.3d 1318, 1322-1323 (11th Cir. 2000); United States v. Safavian, 435 F.Supp. 2d 36, 40-41 (D.D.C. 2006).
"While direct evidence is not required to authenticate a text message or e-mail, most jurisdictions require something more than just confirmation that the number or e-mail address belonged to a particular person. See, e.g., In re F.P., 878 A.2d 91, 93-95 (Pa. Super. Ct. 2005) (instant messages properly authenticated through circumstantial evidence including screen names and context of messages and surrounding circumstances); Commonwealth v. Williams, 456 Mass. 857, 926 N.E.2d 1162 (2010) (admission of MySpace message was error where proponent advanced no circumstantial evidence as to security of MySpace page or purported author's exclusive access). Often it was important that there be evidence that the e-mails, instant messages, or text messages themselves contained factual information or references unique to the parties involved. For example, in Safavian the District of Columbia federal district court held that e-mail messages [*13] were properly authenticated where the e-mail addresses contained distinctive characteristics including the name of the person connected to the address, the bodies of the messages contained a name of the sender or recipient, and the content of the e-mails further authenticated them as being from the purported sender to the purported recipient. 435 F. Supp. 2d at 40."
157 Idaho at , 334 P.3d at 287-88.
In Pavlovich v. State, 6 N.E.3d 969 (Ind. Ct. App. 2014), the Court of Appeals of Indiana addressed a claim that the trial court had erroneously admitted e-mails that had not been properly authenticated:
"Pavlovich contends that the text and e-mail messages were not properly authenticated as having been written by him. 'To lay a foundation for the admission of evidence, the proponent of the evidence must show that it has been authenticated.' Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009), trans. denied. This authentication requirement applies to the substantive content of text messages purported to be sent by a party. See id. Under Indiana Evidence Rule 901(a) as it existed at the time of Pavlovich's trial, authentication of evidence was 'satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.' 'Absolute proof of authenticity is not required.' Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. The proponent of the evidence needs [*14] to establish only a reasonable probability that the document is what it is claimed to be. Id. Once this reasonable probability is shown, any inconclusiveness regarding the exhibit's connection with the events at issue goes to the exhibit's weight, not its admissibility. Id. Additionally, authentication of an exhibit can be established by either direct or circumstantial evidence. Newman v. State, 675 N.E.2d 1109, 1111 (Ind. Ct. App. 1996).
"At the time of Pavlovich's trial, Indiana Evidence Rule 901(b)(4) provided that evidence could be authenticated by '[d]istinctive characteristics and the like,' including '[a]pperance [sic], contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.' This language is very similar to Federal Rule of Evidence 901(b)(4). In what has been described as a 'watershed' opinion with respect to authentication of text and e-mail messages, the United States District Court of Maryland stated that '[t]his rule is one of the most frequently used to authenticate e-mail and other electronic records.' Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 546 (D. Md. 2007). Quoting the official commentary to this rule, the Lorraine court observed:
"'"[t]he characteristics of the offered item itself, considered in the light of circumstances, afford authentication techniques in great variety," including authenticating [*15] an exhibit by showing that it came from a "particular person by virtue of its disclosing knowledge of facts known peculiarly to him," or authenticating "by content and circumstances indicating it was in reply to a duly authenticated" document.'
"Id. In other words, '[u]se of this rule often is characterized as authentication solely by "circumstantial evidence."' Id.
"The Texas Court of Criminal Appeals has noted the various ways in which text or e-mail messages have been adequately authenticated as having been written by a party:
"'In some cases, the purported sender actually admitted to authorship, either in whole or in part, or was seen composing it. In others, the business records of an internet service provider or a cell phone company have shown that the message originated with the purported sender's personal computer or cell phone under circumstances in which it is reasonable to believe that only the purported sender would have had access to the computer or cell phone. Sometimes the communication has contained information that only the purported sender could be expected to know. Sometimes the purported sender has responded to an exchange of electronic communications in such a way as to [*16] indicate circumstantially that he was in fact the author of the particular communication, the authentication of which is in issue. And sometimes other circumstances, peculiar to the facts of the particular case, have sufficed to establish at least a prima facie showing of authentication.'
"Tienda [v. State], 358 S.W.3d  at 640-641 [(Tex. Crim. App. 2012)] (footnotes and citations omitted). See also People v. Downin, 357 Ill. App. 3d 193, 293 Ill. Dec. 371, 828 N.E.2d 341, 350-351 (2005) (holding e-mails were adequately authenticated as being written by defendant where victim personally knew defendant, had communicated previously with defendant through e-mail, defendant was responsive to victim's e-mail message, and e-mail contained information that would have been known exclusively to him; although e-mails were adequately authenticated and admissible, ultimate question of authorship was for trier of fact to decide), app. denied; Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 941 N.E.2d 1143, 1146-1147 (2011) (holding e-mails were adequately authenticated where in one, defendant indicated he would be at a certain place at a certain time and he in fact appeared at that place and time, and in another e-mail he provided a telephone number, which investigating officer immediately called and defendant answered), rev. denied; In re F.P., 878 A.2d 91, 95 (Pa. Super. Ct. 2005) (holding instant messages were adequately authenticated as having been written by defendant [*17] where defendant referred to his name and made threats and discussed events related to matters about which victim testified); Manuel v. State, 357 S.W.3d 66, 77-78 (Tex. App. 2011) (holding text messages were adequately authenticated as being written by defendant where stalking victim recognized the number from which messages originated as belonging to defendant, and victim also received voice mail messages from number and she recognized the defendant's voice), rev. refused."
Pavlovich, 6 N.E.3d at 976-77 (footnotes omitted). The Court of Appeals of Indiana held that the e-mails "were properly introduced into evidence and authenticated as having been written by Pavlovich." 6 N.E.3d at 980.
Rule 901(b)(4), Ala. R. Evid., is worded identically to its federal counterpart, as well as the versions in Idaho and Indiana. Like federal Rule 901(b)(4), Idaho's Rule 901(b)(4), and Indiana's Rule 901(b)(4), Alabama's Rule 901(b)(4) provides that evidence can be authenticated by "[d]istinctive characteristics and the like," including "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." In the Advisory Committee's Notes pertaining to this subsection, the Advisory Committee's Notes to the federal rule are referenced, as is Alabama common law.
In the instant case, Hand testified that Culp had sent the e-mails to her and that [*18] she had assisted him in setting up the e-mail account from which the e-mails had been sent. Hand said each e-mail sent from Culp's account contained his photograph and a screen name that he used. Many of the e-mails concluded with "rnc," which are Culp's initials. (C. 304-05, 307-08, 310-14, 316-18, and 321.)
The e-mails sent from Culp's account also contained references that were uniquely used by Culp and Hand. Hand testified that references to "Sammy" and to Wheaties cereal were ways she and Culp talked about methamphetamine. (R. 248.) Several of the e-mails sent from Culp's account contained the word "Sammy" or "Sammys." (C. 302, 308, and 314.) Another e-mail contained a reference to Wheaties cereal.3 (C. 303.)
3 The e-mail references Culp's "breakfast of champions" and stated that Culp "couldnt [sic] even finish [his] bowl." (C. 303.) We take judicial notice that Wheaties cereal has been advertised as the "breakfast of champions." See Kmart Corp. v. Bassett, 769 So. 2d 282, 286 (Ala. 2000) ("A court may take judicial notice of certain facts that are within the common knowledge.").
The e-mails were properly authenticated, and the circuit court did not abuse its discretion in admitting them.
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