Email Evidence — Forwarded Emails Are Duplicate Originals within Best Evidence Rule — Circumstantial Authentication Includes Fact That Content within Messages Is Logically Interconnected and Connected to Oral Communications

State v. Robinson, 2015 Kan. LEXIS 929 (Kan. Sup. Ct. Nov. 6, 2015):

John E. Robinson, Sr., was charged with multiple offenses related to the murders of six women--killings that constituted parts of a common scheme or course of conduct whereby Robinson would lure women to Johnson County with offers of employment, travel, and other benefits; exploit them sexually, financially, or otherwise; kill them and dispose of their bodies in a similar manner; and engage in various acts of fraud, deceit, and manipulation to conceal his crimes. This common scheme or course of conduct began in the mid-1980s and continued until Robinson's arrest in June 2000.

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E-mails Admitted over Best Evidence and Authentication Objections

Robinson argues the trial court abused its discretion by admitting a number of e-mail exchanges between Robinson and the victims or other witnesses, which tended to support the State's theory that he lured his victims and engaged in acts of fraud and deceit to conceal their murders as part of the common scheme or course of conduct charged in the capital counts. In particular, Robinson believes these e-mails were unreliable because most exhibits had been forwarded to law enforcement and printed, rather than printed from the original recipient's computer.

1. Standard of Review

We review best evidence and authentication challenges on appeal for an abuse of discretion. See State v. Hill, 290 Kan. 339, 364, 228 P.3d 1027 (2010) (authentication).

2. Did admission of the e-mails violate the best evidence rule?

Robinson contends the trial court violated the best evidence rule by admitting numerous [*364]  e-mails that were forwarded to police rather than printed from the victims' or witnesses' computers. Robinson also challenges exhibits containing e-mail strings rather than individual, segregated messages.

The best evidence rule provides that "[a]s tending to prove the content of a writing, no evidence other than the writing itself is admissible, except as otherwise provided in these rules." K.S.A. 60-467(a). A "writing" is defined broadly to include every means of recording, upon any tangible thing, any form of communication or representation. K.S.A. 60-401(m). Both parties presume the challenged e-mails constitute "writings" and were offered to prove their content. We assume, without deciding, the same. Cf. State v. Schuette, 273 Kan. 593, 599, 44 P.3d 459 (2002) (caller ID displays not a writing because "[t]he results cannot be printed out or saved on an electronic medium"); State v. Wilson, No. 103,749, 2012 WL 718916 (Kan. App. 2012) (unpublished opinion) (assuming "text messages may be writings subject to the best evidence rule"), rev. denied 296 Kan. 1136 (2013); see State v. Dale, 293 Kan. 660, 663, 267 P.3d 743 (2011) (best evidence rule applies only when evidence offered to prove content of a writing).

Generally the best evidence rule requires the original writing be introduced when available. See State v. Goodwin, 223 Kan. 257, 258, 573 P.2d 999 (1977) (original required, but secondary evidence admissible where original unavailable). However, when a writing [*365]  is stored electronically, what constitutes an original and the practicalities of any production are not automatically clear. After all, "[p]roduction of a true original of an email or social networking page is not necessarily possible because both are always electronic." Pannozzo, Uploading Guilt: Adding A Virtual Records Exception to the Federal Rules of Evidence, 44 Conn. L. Rev. 1695, 1708 (2012). K.S.A. 60-467(a) does not squarely address what constitutes an original for best evidence purposes when "the writing itself" is stored electronically, and we have not had occasion to address the subject previously.

In the absence of controlling authority, the parties turn to the federal equivalent of our best evidence rule. Like K.S.A. 60-467, the federal rule contemplates that "[a]n original writing . . . is required in order to prove its content" unless otherwise provided by rule or statute. Fed. R. Evid. 1002. More importantly, the federal rule specifically contemplates that "[f]or electronically stored information, 'original' means any printout--or other output readable by sight--if it accurately reflects the information." Fed. R. Evid. 1001(d). This definition is consistent with Federal Rule of Evidence 1003, which provides that "[a] duplicate is admissible to the same extent as the original unless a genuine question is raised [*366]  about the original's authenticity or the circumstances make it unfair to admit the duplicate." A "duplicate" is defined as "a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original." Fed R. Evid. 1001(e).

We regard the federal rule, along with similar state counterparts, as instructive, and we are persuaded by the authority interpreting these provisions. See Fredricks v. Foltz, 221 Kan. 28, 30, 557 P.2d 1252 (1976) (finding federal interpretations persuasive where state and federal rules similar). The federal version of the rule is consistent with our prior holdings allowing the use of duplicates or secondary evidence, barring genuine disputes as to fraud or alteration. See, e.g., Goodwin, 223 Kan. at 258-59 (defendant's best evidence challenge flawed where he never suggested contents of secondary evidence were less than the truth; absent proof of discrepancy, secondary evidence admissible). Likewise, by excluding printouts of electronically stored information or duplicates where the content is inaccurate, the federal rules further the underlying purpose of the best evidence rule--the prevention of fraud. See United States v. Yamin, 868 F.2d 130, 134 (5th Cir. 1989) (purpose is to prevent fraud).

Based on the federal definition of an "original" [*367]  and "duplicate" writing, along with the underlying rule accepting both for best evidence purposes, any printed version of e-mail communications may be admitted as the original, provided there is no genuine dispute regarding authenticity. See New Image Painting, Inc. v. Home Depot U.S.A., Inc., No. SACV 09-1224 AG (RNBx), 2009 WL 4730891, at *2 (C.D. Cal. 2009) (unpublished opinion) (copies of e-mails constitute duplicate originals under Fed. R. Evid. 1003); Dirickson v. State, 104 Ark. App. 273, 277, 291 S.W.3d 198 (2009) (printouts of Internet conversations fall within definition of original); Commonwealth v. Amaral, 78 Mass. App. 671, 675-76, 941 N.E.2d 1143 (2011) (accepting printed e-mails as best evidence). Courts have found such printouts acceptable for best evidence purposes, even where the e-mails have been forwarded. Greco v. Velvet Cactus, LLC, Civ. No. 13-3514, 2014 WL 2943598, at *2-3 (E.D. La. 2014) (unpublished opinion) (text messages converted to e-mail format and forwarded to counsel for printing constituted "original" for best evidence purposes).

Robinson cites Bobo v. State, 102 Ark. App. 329, 335-36, 285 S.W.3d 270 (2008), for the proposition that a printout of a forwarded e-mail violates the best evidence rule. However, Bobo did not hold that printouts of forwarded e-mails could not be deemed a proper "original" or "duplicate" per se. Instead, it merely ruled in favor of the argument advanced by the prosecution in that case--that e-mails were admissible under the loss or destruction-of-original exception to the best evidence [*368]  rule. 102 Ark. App. at 335-36.

Robinson also cites Ruberto v. C.I.R., 774 F.2d 61 (2d Cir. 1985), and State v. Lewis, No. 96,005, 2008 WL 142105, at *6 (Kan. App. 2008) (unpublished opinion), in support of his best evidence argument. In both those cases, the prosecution attempted to admit photocopies of cancelled checks, instruments that formed the very subject of the criminal charges. However, without the original checks, there were legitimate proof problems in attempting to match the endorsements on the back of the checks. Neither Ruberto nor Lewis involved the use of printouts of electronically stored information, and the e-mails in this case did not give rise to the unique proof problems experienced with the photocopies of the original checks. The cited authority is distinguishable.

Robinson also argues the State's e-mail evidence is not an original writing as defined under the federal rules. He relies on an Advisory Committee Note explaining that a duplicate "describes 'copies' produced by methods possessing an accuracy which virtually eliminates the possibility of error." Fed. R. Evid. 1001 Advisory committee Note 4. Robinson reasons that forwarded e-mails do not possess an accuracy virtually eliminating error because their text can be manipulated.

Of course, Robinson's argument applies to the use of duplicates under Federal Rule of Evidence 1003 only, and [*369]  it completely ignores Federal Rule of Evidence 1001(d), which defines an original to include any accurate printout of electronically stored information. Furthermore, the Advisory Committee Note Robinson cites provides that the method of reproducing the communication must be accurate, not that the process must be immune from subsequent fraudulent alteration. Fed. R. Evid. 1001 Advisory Committee Note 4; cf. 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 (and copies of those documents)."); Simon v. State, 279 Ga. App. 844, 847, 632 S.E.2d 723 (2006) ("e-mail offers unique opportunities for fabrication, [but] it is held to the same standards of authentication as other similar evidence"); Commonwealth v. Purdy, 459 Mass. 442, 450, 945 N.E.2d 372 (2011) ("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."). Robinson does not dispute that e-mail programs accurately reproduce the content of the prior e-mail exchanges between a sender and recipient, i.e., the e-mail string, anytime a party clicks "reply" or "forward" within the e-mail program. This method of reproduction appears [*370]  to be the very type of process the Advisory Committee deemed acceptable for purposes of a duplicate original.

Robinson also argues that the e-mails did not constitute the best evidence because there were signs of possible alteration. We address this argument fully in defendant's authentication challenge.

We find no error in Judge Anderson's ruling that accurate printouts of e-mails are akin to duplicates or otherwise satisfy the best evidence rule, even if the e-mail messages are forwarded or contain e-mail strings. See Adams v. State, 2005 WY 94, ¶ 22-26, 117 P.3d 1210 (Wyo. 2005) (admission of edited printouts of chat room messages did not violate best evidence rule; computer printouts subject only to proof of authenticity).

3. Were the Challenged E-mails Authenticated Properly?

"Authentication of a writing is required before it may be received in evidence." K.S.A. 60-464. "The authentication requirement is 'satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.'" United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir. 1991) (quoting Fed. R. Evid. 901[a]). The proponent of the writing must proffer evidence upon which a reasonable juror could conclude that the message is what it purports to be. Safavian, 435 F. Supp. 2d at 38; People v. Downin, 357 Ill. App. 3d 193, 202-03, 828 N.E.2d 341 (2005). Courts have characterized this burden of proof as minimal or slight. United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007) (standard "minimal"); [*371]  Lexington Ins. v. Western Pennsylvania Hosp., 423 F.3d 318, 328 (3d Cir. 2005) (burden "slight"); Manuel v. State, 357 S.W.3d 66, 74 (Tex. App. 2011) (not a "particularly high hurdle").

"[W]hether a writing has been properly authenticated is a matter for the court to decide, according to no precise formula, but based upon proof to its satisfaction." United States v. Wagner, 475 F.2d 121, 123 (10th Cir. 1973). We have recognized that such proof may be in the form of indirect or circumstantial evidence. State v. Hill, 290 Kan. 339, 365, 228 P.3d 1027 (2010). Circumstantial evidence may include "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances." Fed. R. Evid. 901(b)(4); United States v. Smith, 918 F.2d 1501, 1510 (11th Cir. 1990) (Document may be authenticated solely through circumstantial evidence, "including the document's own distinctive characteristics and the circumstances surrounding its discovery. [Citations omitted.]"), cert. denied sub nom. Hicks v. United States, 502 U.S. 849 (1991), and Sawyer v. United States, 502 U.S. 890 (1991).

Once the proponent has offered sufficient authentication evidence, discrepancies and other conflicting evidence go to the weight, not the admissibility, of the writing. See State v. Peoples, 227 Kan. 127, 133, 605 P.2d 135 (1980); People v. Lucas, 60 Cal. 4th 153, 262, 177 Cal. Rptr. 3d 378, 333 P.3d 587 (2014).

Robinson's challenge focuses on the genuineness of numerous e-mail exhibits. Given the number of e-mails in question, the various senders and recipients involved, and the different forms in which they were admitted, we divide them into the following four categories for purposes of our analysis: [*372]  (1) e-mails sent to or from Lore Remington; (2) e-mails sent to or from Tammi Taylor; (3) e-mail to Marshalla Chidester; and (4) e-mails seized pursuant to search warrant.

a. E-mails Sent to or from Lore Remington

Robinson contends the e-mail messages between Robinson and Lore Remington, State's Exhibits 4, 5, 11, and 12, were not properly authenticated.

At trial, the State proffered Remington's testimony outside the presence of the jury to authenticate these exhibits. Based on her independent recollection, Remington testified that State's Exhibits 4 and 5 were printouts from her home computer of e-mails she received from and sent to Robinson when he was posing as Trouten. She confirmed the content of the messages were true and accurate and that she did not alter them in any way. Based on this testimony, the State adequately authenticated State's Exhibits 4 and 5. See Bobo, 102 Ark. App. at 334-36 (copies of e-mails properly admitted where witness confirmed content matched his independent recollection of messages); Simon, 279 Ga. App. at 847-48 (e-mails properly authenticated where witness testified printouts accurately reflected exchange between the parties and messages contained indicia of reliability); Kearley v. State, 843 So. 2d 66, 70 (Miss. App. 2002) (e-mails properly authenticated where [*373]  witness vouched for accuracy of printouts); Shea v. State, 167 S.W.3d 98, 105 (Tex. App. 2005) (e-mails authenticated where complaining witness testified she was familiar with the defendant's e-mail and received the messages from him); Tibbetts v. RadioShack Corp., No. 03-C-2249, 2004 WL 2203418, at *13 (N.D. Ill. 2004) (unpublished opinion) (copies of e-mails authenticated by sales manager's testimony that they were true and accurate copies); see also Annot., 34 A.L.R. 6th 253 (Authentication of Electronically Stored Evidence) § 2, pp. 269-70 (citing Mueller and Kirkpatrick, Federal Evidence § 9:9 [3d ed.] [witness who viewed original e-mail need only testify printout is an accurate reproduction]).

Other circumstantial evidence corroborated Remington's testimony and the authenticity of these e-mails. State's Exhibit 4 is a copy of the original message Robinson, posing as Trouten, sent to Remington on Trouten's Hotmail account. State's Exhibit 5 depicts the entire exchange of messages that occurred between the two on March 2, 2000, including the original message contained in State's Exhibit 4, Remington's response, and Robinson's reply to that response. The content within each message is logically connected to the others and reflects an ongoing exchange or dialogue between the parties. See Downin, 357 Ill. App. 3d at 203-04 (e-mails authenticated where witness sent e-mail to defendant's [*374]  address, and defendant's reply was responsive to message). In the final message of the e-mail string in State's Exhibit 5, Robinson, posing as Trouten, referred Remington to an eruditemaster@email.com address and encouraged her to contact the party at that address to meet a new BDS&M master. Before her proffer to the district judge, Remington had testified that she sent an e-mail message to the "eruditemaster" address, received a response, and began communicating regularly with a man she came to know as "James Turner," one of Robinson's known aliases. See Hill, 290 Kan. at 365 (writing authenticated where contents reveal knowledge particularly held by parties or substance uniquely identifiable); State v. Rives, 220 Kan. 141, 143-44, 551 P.2d 788 (1976) (writing may be admitted where contents and circumstances reasonably imply author is person sought to be charged).

As to State's Exhibits 11 and 12, Remington testified they were copies of two e-mail exchanges between Remington and Robinson, posing as Turner, at the eruditemaster address, which she forwarded to investigators at the Lenexa Police Department. Remington confirmed these exhibits were true and accurate copies of the original messages she observed on her computer screen. The only difference was that [*375]  the exhibits had caret symbols located in front of the body of the message, signifying the content had been forwarded to investigators. Remington testified she did not alter the content of the messages before forwarding them to police.

Additional circumstances corroborated Remington's testimony and the authenticity of these exhibits. Before her proffer, Remington testified that she began communicating with Robinson, posing as Turner, at the eruditemaster address around the third week of March 2000 and continued to do so until Robinson's arrest in June. See State v. Bohlman, No. A05-207, 2006 WL 915765, at *7 (Minn. App. 2006) (unpublished opinion) (e-mails authenticated where witness testified she regularly communicated with defendant at address appearing on exhibits). The e-mail communications carried over into telephone conversations. Remington testified that she spoke to Robinson, posing as Turner, by telephone on 20 to 30 occasions. One of those conversations, which was intercepted by wiretap and played for the jury, closely paralleled the content of the e-mail message admitted as State's Exhibit 12. See State v. Franklin, 280 Kan. 337, 342, 121 P.3d 447 (2005) (text messages authenticated where content consistent with defendant's activities and statements); see also United States v. Siddiqui, 235 F.3d 1318, 1321-22 (11th Cir. 2000) (e-mails [*376]  properly authenticated where witness testified that subject matter of e-mail conversations carried over into telephone conversations).

Also, while searching Robinson's Olathe storage unit, police found several printed documents stored in a briefcase, including State's Exhibit 19EE--a printout of an e-mail from Remington to "JT," presumably James Turner. The body of this e-mail message is identical to the body of the message contained in State's Exhibit 11. The only difference between the exhibits is that the header information on State's Exhibit 11 shows the e-mail was sent from Remington's e-mail account and the header information on State's Exhibit 19EE shows the e-mail was received on Robinson's e-mail account. While State's Exhibit 19EE was admitted after Judge Anderson had admitted State's Exhibits 11 and 12, it nevertheless confirms the accuracy of the contents of these exhibits.

Despite this evidence, Robinson argues the e-mails should have been excluded because of possible indicators of alteration. First, Robinson highlights a time stamp discrepancy between State's Exhibit 4 and State's Exhibit 5. State's Exhibit 4 contains a time stamp indicating the first e-mail sent by Robinson [*377]  to Remington was delivered at 9:15 a.m. State's Exhibit 5, which includes the entire string of e-mails sent between the two on March 2, includes a time stamp indicating that the same message was sent at 8:15 a.m. Remington could not definitively explain the reason for the difference but confirmed the 8:15 a.m. time stamp on State's Exhibit 5 did not originate from her computer; it came from Robinson's, suggesting the clocks on their computers were not synchronized or perhaps set to different time zones. Remington testified to the actual dates and times she sent and received the messages in these exhibits based on her independent recollection, and Robinson does not challenge the accuracy of their content. Judge Anderson's authentication findings are supported by substantial competent evidence. See Schlaikjer v. Kaplan, 296 Kan. 456, 468, 293 P.3d 155 (2013) (appellate courts accept findings supported by substantial competent evidence).

Second, Robinson argues the header information in State's Exhibit 5 is suspicious. In the first message of that e-mail string, the subject line read: "I'm off." In the second message, the header read: "Re: I'm off." In the third message, the subject line again read: "Re: I'm off." During her proffer, Remington [*378]  explained her e-mail program automatically generated a "Re:" in the subject line when she responded to a message but that not all e-mail programs did so. During cross-examination, Robinson's counsel suggested the final message in Exhibit 5 should have included a "Re: Re:" in the subject line--apparently forgetting that the final message was sent by Robinson, not Remington. Defense counsel seemed to realize the oversight, withdrawing his line of questioning and abandoning the argument. Robinson's attempt to revive the issue is wholly unpersuasive.

Third, Robinson argues that all exhibits authenticated through Remington should have been excluded due to her propensity to alter electronic messages. Remington sent investigators logs of her online chat sessions with Trouten in two separate e-mails. The first time, Remington included only the logs she thought were most relevant to the investigation. She later sent a complete set of the requested logs. Robinson believes Remington "omitted material information" and demonstrated "a pattern of manipulating documents" by sending an incomplete set of chat logs in her first e-mail. Judge Anderson rejected the argument, finding that Remington never [*379]  said the first submission was complete and, in fact, disclosed otherwise. Indeed, in the first e-mail submission, Remington made clear she was including only a selection of her chat logs with Trouten. Once again, Judge Anderson's finding is supported by substantial competent evidence.

Finally, Robinson argues State's Exhibits 11 and 12 are unreliable because the State redacted header information showing the e-mails had been forwarded to it by Remington. However, the defense received unredacted versions of these e-mails during discovery and nothing prevented counsel from using them on cross-examination. Remington's testimony confirmed the redacted versions of the e-mails were true and accurate copies of the original messages on her computer, and Robinson does not suggest otherwise. In fact, in his brief, Robinson compares a redacted version of an e-mail to the unredacted version, and the content of the two messages is identical.

Remington's testimony and other corroborating evidence authenticated State's Exhibits 4, 5, 11, and 12. Robinson's arguments founded on immaterial, technical deviations in the writings failed to establish a genuine issue as to their accuracy. Such arguments went [*380]  to the weight, not the admissibility, of the evidence. See Gagliardi, 506 F.3d at 151; United States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000); Purdy, 459 Mass. at 451; State v. Bell, 145 Ohio Misc. 2d 55, 67, ¶ 34, 882 N.E.2d 502 (2008), aff'd 2009 WL 1395857, at *5 ¶ 31 (Ohio App. 2009) (unpublished opinion); Commonwealth v. Koch,     Pa.    , 106 A.3d 705, 712-14 (Pa. 2014).

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