Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
AUTHENTICATING ELECTRONIC EVIDENCE: TEXT MESSAGES AND E-MAILS
July 9, 2009
I read with interest Josh Gilliland's recent post on the admissibilty of text messages in State v. Loye, 2009 Minn. App. Unpub. LEXIS 660, 1 (Minn.Ct.App. 2009), in which the court ruled there was no error when the lower court failed to admit a handwritten transcript of text messages.
Handwritten is pretty unusual, but printed copies of e-mails and text messages are fairly routinely accepted as evidence in most courts. Why? Because no one objects. If the attorneys are smart, and they want to use paper, they stipulate as to authenticity before they set foot in a courtroom. More commonly, they aren't that prepared – but in the absence of an objection, the evidence usually comes in anyway. Courts take the practical view that "it is what it purports to be, unless there is some reason to believe it is not."
The clear exception is in Chief Magistrate Judge Paul Grimm's courtroom, which all those who follow electronic evidence cases will understand . . .
Back to the real world: Where there is an objection, you have to be ready to lay a proper foundation. "Did you send this e-mail?" "Did you receive this text message?" The trouble generally comes when one party or the other says that a printed e-mail or text message is not an accurate representation or, indeed, an outright fraud – as often happens with spoofed e-mails in divorce cases.
This is where it is invaluable to have the original electronic evidence. This doesn't always involve computer forensics, but when it does (especially where e-mail or text messages were deleted), you need your expert present to testify as to the methodology and software used, supporting the authenticity of the offered evidence.
It pays to come to court prepared.
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