A recent Ohio Court of Common Pleas case illustrates the approach one court took to authenticating emails. The case is State v. Bell, 145 Ohio Misc.2d 55, 882 N.E.2d 502 (2008), and it’s from Clermont County, Ohio.
The defendant, Jaysen Bell, was (and is, I guess) charged with “one count of rape, three counts each of sexual battery and sexual imposition, and one count of gross sexual imposition stemming from alleged improper sexual conduct involving two foster children, T.T. and T.W., between July 2003 and June 2006. “ State v. Bell, supra. He filed a number of motions seeking to prevent evidence from being used at trial; one of the motions was directed at emails and online chats that allegedly occurred between him and one of the victims. State v. Bell, supra.
What the opinion tells us about the evidence involving the emails and chats is this:
During . . . their investigation, police obtained a search warrant for computer equipment located in defendant's home. A search of the seized hard drives uncovered stored pornographic images, e-mail messages, and MySpace chat messages. . . . The state seeks to introduce the images and . . . allegedly incriminating e-mail and chat messages between defendant and the complaining witnesses during trial.State v. Bell, supra.
As I said, Mr. Bell moved to bar the state from introducing emails and MySpace chats allegedly between him and one of the victims, T.W. He argued, among other things, that the state could not authenticate them. Specifically, he argued that
MySpace chats can be readily edited after the fact from a user's homepage. Furthermore, he points out that while his name may appear on e-mails to T.W., the possibility that someone else used his account to send the messages cannot be foreclosed. Defendant's motion thus raises . . . authentication of those electronic communications offered in printed form during trial.State v. Bell, supra.
The court explained the standard for authenticating evidence, noting that it is relatively undemanding:
Ohio Rule of Evidence 901(A) provides, `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.’ According to the Twelfth District, the evidence necessary to support this finding is quite low-even lower than the preponderance of the evidence. Burns v. May (1999), 133 Ohio App.3d 351, 728 N.E.2d 19. Other jurisdictions characterize documentary evidence as properly authenticated if `a reasonable juror could find in favor of authenticity.’ See, e.g., United States v. Tin Yat Chin (C.A.2, 2004), 371 F.3d 31, 38.State v. Bell, supra.
Mindful of this low standard, the court finds that T.W. may sufficiently authenticate the electronic communications through testimony that (1) he has knowledge of defendant's e-mail address and MySpace user name, (2) the printouts appear to be accurate records of his electronic conversations with defendant, and (3) the communications contain code words known only to defendant and his alleged victims. In the court's view, this would permit a reasonable juror to conclude that the offered printouts are authentic.
The court then noted that Mr. Bell’s challenge actually raised a related issue – chain of custody. As Wikipedia explains, chain of custody refers to the need to document
the seizure, custody, control, transfer, analysis, and disposition of evidence, physical or electronic. Because evidence can be used in court to convict persons of crimes, it must be handled in a scrupulously careful manner to avoid later allegations of tampering . . . which can compromise the case of the prosecution toward acquittal or to overturning a guilty verdict upon appeal. The idea behind recording the chain of custody is to establish that the alleged evidence is fact related to the alleged crime - rather than, for example, having been planted fraudulently to make someone appear guilty.The chain of custody requirement, therefore, both protects innocent people from being convicted and helps to ensure that properly obtained convictions can be upheld on appeal.
According to this Ohio court, Bell’s argument was, as I noted, really about chain of custody:
While Ohio courts have had little opportunity to address the issue at hand, this court views defendant's complaints that the communications at issue are incomplete, easily altered, or possibly from an unidentified third party using his account information as akin to issues involving chain-of-custody disputes. Such issues touch upon concerns regarding the weight of given evidence and not its authenticity. `When an item is sufficiently authenticated to be admissible, but the chain of custody remains doubtful, the possibility that the exhibit may be misleading is an issue of weight of the evidence.’ Hall v. Johnson (1993), 90 Ohio App.3d 451, 455, 629 N.E.2d 1066 , . . . Other jurisdictions . . . addressing Defendant's concerns agree that they present issues of evidentiary weight. United States v. Tank (C.A.9, 2000), 200 F.3d 627 (arguably incomplete chat room logs presented issue of weight, not authenticity). . . .So what the court found is that the evidence could be admitted -- because it had been authenticated – but Mr. Bell could still argue to the jury that it was not credible enough, not reliable enough, for them to rely upon in finding him guilty of the charges against him.
A Nebraska federal district court reached a different conclusion in U.S. v. Jackson, 488 F. Supp.2d 866 (D. Neb. 2007). There, the defendant moved to bar the government from using a “cut-and-paste” document that allegedly recorded online conversations between the Jackson and Postal Agent David Margitz, who had posed online as a 14-year-old girl. Based on alleged chats online chats between Jackson and the person he allegedly believed to be a 14-year-old girl, he was charged using a computer to induce a minor to engage in sexual activity in violation of 18 U.S. Code section 2422(b).
The problem was that the government did not have either printed transcripts of the alleged communications between Margitz and Jackson or access to the hard drive on which they were stored. Margitz had wiped the hard drive at some point, and had not made a back-up copy of its contents; and he apparently never printed out the conversations he allegedly had with Jackson. Instead, Margitz had assembled a “cut-and-paste” synopsis, or set of excerpts, of the conversations; it was this the prosecution wanted to introduce into evidence at trial.
The court held that it was not admissible because it was not authentic:
[T]here are numerous examples of missing data, timing sequences that do not make sense, and editorial information. The court finds that this document does not accurately represent the entire conversations that took place between the defendant and Margritz. The defendant argues that his intent when agreeing to the meeting was to introduce his grandniece to the fourteen-year-old girl. Defendant is entitled to defend on this basis, as it goes to the issue of intent. Defendant alleges that such information was excluded from the cut-and-paste . . . The court agrees and finds the missing data creates doubt as to the trustworthiness of the document. . . . Changes, additions, and deletions have clearly been made to this document, and accordingly, the court finds this document is not authentic as a matter of law.U.S. v. Jackson, supra.
Like the Ohio court, the prosecutors in the Jackson case cited the decision in U.S. v. Tank, but the Nebraska federal court found it did not apply here because in Tank “the actual computer files were offered as evidence, not a cut-and-paste version of the computer files”. The court therefore granted Jackson’s motion to suppress the evidence (which, as it turned out, was not all that important, since it also dismissed the charges against him because the government had violated his Fifth Amendment right to a speedy trial).