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Trial: Direct Examination: Specific Issues

This Guide, prepared by the Robert M. Spire American Inn of Court, presents resources for conducting a direct examination.

Introduction

The sources in this section highlight issues regarding the admissibility of electronic evidence, including social media websites.  Additionally, the sources provide specific guidance on how to properly authenticate different types of electronic evidence.

Use and Authentication of Text Messages as Evidence in Direct Examination

1. Authentication of Electronically Stored Evidence, including text messages and e-mail.

a. Description:

(1) This article provides a comprehensive overview of electronic evidence including e-mail, text messages, chat room transcripts, websites, downloaded files and program files. 

(2) This article provides a 50-state overview of when the documents have been deemed admissible and inadmissible. 

(3) “Authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person; circumstantial evidence, which tends to corroborate the identity of the sender is required.” Citing Pa. Rule of Evid. Number 901, Com. v. Koch, 2011 PA Super 201, 2001 WL 4336634 (2011).

b. Availability: 34 A.L.R. 6th 253 (Originally published in 2008).

2. Criminal Pretrial Involving Text Messaging Evidence.

a. Description:

(1) This article is meant as a comprehensive overview of the use of text messages as evidence in all types of criminal prosecutions.

(2) Cites to Fed. R. Evid. 901(b)(4) in stating that electronic evidence may be authenticated by reference to its “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances.”

(3) Includes a check list to help determine if there are sufficient facts to allow the admission of text message evidence in a criminal prosecution. 

b. Availability: 116 Am. Jur. Proof of Facts 3d 345 (Originally Published in 2010).

3. Civil Pretrial Involving Text Messaging Evidence.

a. Description:

(1) This article is meant as a comprehensive overview of the use of text message evidence in all types of civil prosecutions. 

b. Availability: 115 Am. Jur. Proof of Facts 3d 1 (Originally published in 2010).

Use and Authentication of Emails as Evidence in Direct Examination

1. Authentication:

Summary: Rule 901(2)(d) allows authentication by, among other means, “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances”.  Thus, it is usually not necessary to call a computer expert or to establish a “chain of custody” for emails.  Instead, emails may be authenticated in the manner similar to letters, contracts, and other written documents: by having a witness testify that the email is what it purports to be.  The bar for admission is not high.  The court need only make a threshold determination that the evidence is “sufficient to support a finding” that the proffered exhibit is what it purports to be.  In a case where the sender of the email is available to testify, such witness testifying that he or she sent the email should normally be sufficient to authenticate the email.  In the case of an email that has been received, the email may be authenticated by circumstances from which the jury could reasonably conclude that the email was sent by the purported sender.  Such circumstances may be found in the sender’s email address, the signature block of the email, or the contents of the email.  The possibility that the email was altered or that the email was sent by someone else goes to weight and not admissibility.

The Nebraska Supreme Court discussed the authentication of emails in the case of State v. Pullens, wherein the Court stated:

“Rule 901 does not impose a high hurdle for authentication or identification.  The proponent is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity.  Instead, if the proponent's showing is sufficient to support a finding that the evidence is what it purports to be, then the proponent has satisfied the requirement of rule 901(1). …

There are several ways that the authorship of an e-mail may be shown. E-mails may be authenticated by use of the e-mail address, which many times contains the name of the sender.  The signature or name of the sender or recipient in the body of the e-mail is also relevant to authentication.  Evidence that an e-mail is a timely response to an earlier message addressed to the purported sender is proper foundation analogous to the reply letter doctrine.  Finally, the contents of the e-mail and other circumstances may be utilized to show its authorship.  The possibility of an alteration or misuse by another of the e-mail address generally goes to weight, not admissibility.” 

State v. Pullens, 281 Neb. 828, 860, 800 N.W.2d 202, 229 (2011).

a. Additional Resources:

(1) United States v. Safavian, 435 F. Supp. 2d 36 (D.D.C. 2006) (upholding admission of emails based on characteristics such as email address, contents of email, signature block, and similarities to other authenticated emails).

(2) 5 Federal Evidence § 9.9 (3d Ed.)(discussing authentication of emails and other electronic forms of evidence).

(3) Authentication of Electronically Stored Evidence, Including Text Messages and E-mail, 34 A.L.R. 6th 253 (2008).

(4) Admission of E-mail Evidence in Civil Actions, 103 Am. Jur. Trials 123 (2007).

2. Hearsay: Rules 801 – 806 apply - If the contents of the email are offered to prove the truth of the matter asserted, then the proponent will have to find an applicable hearsay exception.

3. Best Evidence Rule: Rule 1002 – “original writing, recording, or photograph” – When attempting to prove the contents of an email, the email itself must be offered unless it is shown to be unavailable.  It is generally improper to have a witness testify as to the contents of an email if the email itself is available and could be offered as evidence.

4. Mailbox Rule : Presumption of delivery applies to e-mails.  American Boat Co. v. Unknown Sunken Barge, 418 F.3d 910 (8th Cir. 2005).

Use and Authentication of Websites as Evidence in Direct Examination

1. Jonathan E. DeMay, The Implications of the Social Media Revolution on Discovery in U.S. Litigation, The Brief (Summer 2011).

a. Description: This article provides a summary of case law discussing the discoverability of social media, including Facebook, MySpace, and LinkedIn.  After examining some of the significant decisions, the article sets forth general guidelines a practitioner should follow when seeking discovery from social media websites.

b. Availability: Westlaw, 40-SUM BRIEF 55.

2. Edward M. Marsico, Jr., Social Networking Websites: Are MySpace and Facebook the Fingerprints of the Twenty-First Century?, 19 Widener L. J. 967 (2010).

a. Description: This article provides case law discussing authentication of social networking sites.   Generally, the evidence must be authenticated pursuant to Federal Rules of Evidence 901 and 902.   The cases cited in the article provide more specific guidelines on authentication of social media websites.

b. Availability:

(1) Westlaw, 19 Widener L.J. 967.

(2) LexisNexis, 19 Widener L.J. 967.

3. David I. Schoen, The Authentication of Social Media Postings, Am. Bar Assoc. (May 17, 2011).

a. This article discusses issues involving the authentication of social media websites.  First, the article asserts that a proponent of a paper printout from a social media site must address at least two preliminary questions: First, did the information in the exhibit appear on the website, and does it accurately reflect it as it appeared on the website? Second, can the posting be satisfactorily shown to have arisen from the source (the particular person or entity) that the proponent claims?

b. The article suggests specific foundation questions the proponent should ask for each question.  The article suggests that laying the foundation for the first question is straightforward, while laying the foundation for the second question is more complicated.

c. The article cites Griffin v. State of Maryland, 192 Md. App. 518, 995 A.2d 791, cert. granted, 415 Md. 607, 4 A.3d 513 (2010), as a source that provides a comprehensive and helpful discussion on the admissibility of social media postings and authentication problems that arise in the process.

4. 121 Am. Jur. Proof of Facts 3d 1 (2011):

a. Description: This article presents a detailed and comprehensive discussion of the pretrial aspects of civil actions involving MySpace, Facebook, Twitter, LinkedIn, and other social networking tools.

b. Availability: Westlaw, 121 AMJUR POF 3d 1.

5. Jocelyn D. Larkin, Getting It In: The Admissibility of Electronically Stored Information in Employment Litigation (last visited October 6, 2011).

a. This article focuses on electronic evidence in the employment litigation context.  First, the article identifies five evidentiary hurdles to getting the electronic evidence admitted into evidence.  Taking each hurdle in turn, the article offers suggestions on how to get the evidence admitted.

b. At the end, the article provides a diagram checklist that sets forth evidentiary steps a proponent should take to properly admit electronically stored information.

6. Theodore J. Koerth and Christopher E. Paetsch, How to Admit Email and Web Pages into Evidence, 94 ILL. B.J. 674 (2006).

a. This article states that in recognizing the reality of how much information is now stored on the Internet, courts have admitted computer printouts pursuant to the public records exception to the hearsay rule.

b. Citing relevant case law, the article states that some courts have also recognized that Internet versions of the printed media are just as reliable as the printed media itself.

7. Lorraine v. Markel: Electronic Evidence 101, LexisNexis (last visited October 6, 2011). 

a. This article introduces Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007) as a 101-page opinion on precisely how to get electronically stored information into evidence.  The opinion, the article states, nicely lays out some of the problems with the admissibility of electronically stored information and provides strategic ways to proffer this evidence in federal court.

b. This article outlines how to get electronic evidence in under specific Federal Rules of Evidence, as set forth in the Lorraine opinion.

Use and Authentication of Emails as Evidence in Direct Examination


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