Emails, text messages, and other forms of electronic communication are increasingly being used as evidence in both civil and criminal court cases. However, the admissibility of such digital evidence has raised a number of legal questions. Can emails or texts be authenticated? Do they constitute hearsay? How should issues of privacy and prejudice be balanced against probative value? This article examines the key issues around the admissibility of emails and texts in court.
We will provide an overview of how emails and texts can be used as evidence and the authentication requirements. We will then discuss hearsay rules and whether emails and texts are considered hearsay. Other issues like relevance, privacy, and prejudice vs. probative value will also be explored. Finally, we will look at how attorneys can either utilize emails and texts as evidence or combat against them being used by the other side. By the end, you will have a comprehensive understanding of the legal landscape when it comes to admitting emails and text messages in court.
Definition of Emails and Texts as Evidence
Emails and text messages are considered documentary evidence in legal proceedings. This means they are written communications that can be submitted to prove certain facts of a case. According to the Massachusetts Legal Services, both emails and text messages leave an electronic record of conversations that can be entered into evidence.
Specifically, emails and text messages may contain statements made by parties in a case that are relevant to the legal issues. They can provide documentation of an agreement, threats, admissions of guilt, and other information that may support one side’s arguments and claims. Attorneys can submit printed copies or screenshots of emails and text conversations as exhibits. In some cases, experts may be needed to extract and authenticate digital communications from a device or account.
Text messages in particular have become very common in both civil and criminal cases. According to TIME, over 96% of Americans with cell phones use text messaging regularly. Given how prevalent texting is today, relevant messages exchanged between parties in a dispute are frequently relied on as evidence in trials and hearings.
Authentication
Before emails and text messages can be admitted as evidence in court, they must be authenticated. This means the party seeking to introduce the evidence must provide proof that the evidence is genuine and that it actually came from the alleged author. Simply producing a printout of an email or text message is not enough to authenticate it.
According to the case law, there are a few ways emails and texts can be authenticated (Source 1):
- The alleged author of the email/text can testify that they wrote it.
- A witness who saw the email/text being written can testify to its authenticity.
- The email/text contains distinctive characteristics of the alleged author, like nicknames, writing style, signature etc.
- The author acknowledges receiving or sending the email/text in their testimony.
- An expert witness testifies that the email/text has not been altered or modified based on forensic analysis.
Without proper authentication, emails and texts carry the risk of being forged or modified. Establishing their authenticity through testimony or forensic analysis is key to having emails and texts admitted as credible evidence. The party seeking to introduce an email or text as evidence bears the burden of proving it is real.
Hearsay
Hearsay is an out of court statement offered to prove the truth of the matter asserted. This means that generally emails and texts would be considered hearsay if offered to prove the content within the message. However, there are exceptions that may allow admission.
One major exception is if the statement is being offered for a purpose other than proving the truth of the content. For example, an email may be used to show notice or state of mind of the parties, even if the content itself is hearsay (Hoffman).
Another exception is the business records exception, which allows admission of records made in the regular course of business. However, emails do not automatically qualify as business records. The offering party must lay a foundation showing the email was sent as part of a regular business activity (IADCLaw).
Ultimately, the hearsay analysis will depend on the purpose for admitting the email or text message. With proper foundation and fitting an exception, emails and texts can be admitted over a hearsay objection (FindLaw).
Relevance
For emails and text messages to be admissible as evidence, they must be relevant to the facts at issue in the case. According to Federal Rule of Evidence 401, evidence is relevant if it has any tendency to make a fact that is of consequence to the case more or less probable. For example, in a criminal case, if the prosecution is trying to place the defendant at the scene of the crime, text messages or emails from the defendant near the time of the crime discussing his location would likely be relevant.
Similarly, in a civil case over a contract dispute, emails between the parties negotiating the terms of the contract would be relevant to determining the intent of the parties. However, random emails or texts not pertaining to the facts at issue would likely be deemed irrelevant and inadmissible. The judge ultimately determines whether proffered evidence is relevant. Lawyers must be able to explain how the emails or texts directly relate to the legal questions before the court in order for them to be admitted.
Prejudice vs. Probative Value
When determining whether to allow emails, texts, or other digital evidence, judges must weigh the probative value against potential prejudice to the defendant. Probative value refers to how relevant and important the evidence is to the case. Prejudice means the evidence could unfairly sway the jury against the defendant.
Judges have discretion under Rule 403 to exclude evidence if the prejudice substantially outweighs the probative value. For example, personal texts with inflammatory language could make the defendant look bad without adding much value. On the other hand, incriminating emails may provide key evidence despite some prejudice.
The judge balances these factors on a case-by-case basis. Evidence cannot be excluded merely because it is prejudicial, but only if the prejudice is unfair and outweighs the legitimate probative value. The key is determining whether the evidence is more unfairly prejudicial than it is helpful to the trier of fact.
Examples in Case Law
Emails and text messages have been used as evidence in a variety of cases. In some instances, they have provided key evidence to secure convictions or prove elements of a case. For example, in the high-profile trial of actor Jussie Smollett, prosecutors introduced extensive text message records showing Smollett discussing staging a fake hate crime with two brothers he hired (https://time.com/6196754/text-messages-evidence-court-privacy/). The messages were authenticated and provided damning evidence of Smollett’s guilt.
However, emails and texts are not automatically admissible. In many cases, hearsay objections have barred their admission. In a Florida murder case, incriminating emails the defendant sent from jail were excluded as hearsay because the prosecution could not properly authenticate them (https://www.stangelawfirm.com/articles/email-text-message-evidence-in-litigation/). Similarly, text messages are often excluded when attorneys cannot establish proper foundation and authentication.
Overall, while emails and texts can provide compelling evidence in both civil and criminal cases, admissibility is not guaranteed. Careful consideration of authentication, hearsay, and prejudice vs. probative value will determine whether these electronic communications can be considered as evidence.
Privacy Concerns
The use of private emails and texts as evidence in court can raise privacy issues. According to a study, digital forensics allows investigators deep access into private communications and data, which could reveal sensitive personal information unrelated to the case. There is concern that unfettered access to private emails and texts could enable “fishing expeditions” that violate a person’s reasonable expectation of privacy.
Attorneys and digital forensic investigators need to balance privacy rights with the need for evidence. Proportionality is an important ethical principle – any invasion of privacy through collecting emails/texts should be proportional to the seriousness of the matter. Investigators also need proper legal authorization to access private communications. Overall, the use of private emails and texts requires careful consideration of privacy impacts.
Strategies for Attorneys
For attorneys trying to get emails or text messages admitted as evidence in court, here are some tips:
- Properly authenticate the emails or texts by getting a witness to testify that the documents are what they claim to be. This could be the author or recipient testifying that they wrote/received the messages. See American Bar Association.
- If possible, obtain the original native files instead of printouts. This allows analysis of metadata to aid in authentication. See FindLaw.
- Get a forensic expert to analyze the files if questions arise about authenticity or tampering. See FindLaw.
- Argue the emails/texts fall under a hearsay exception, such as present sense impression, excited utterance, statement of party opponent, or business record. See American Bar Association.
- File a motion in limine before trial to get a preliminary ruling on admissibility. This avoids surprises during trial. See American Bar Association.
By properly preparing, attorneys can overcome authentication and hearsay challenges to successfully admit emails and texts as evidence in court.
Conclusion
In summary, emails and texts are generally admissible in court as evidence, but they must meet certain requirements around authentication, hearsay, relevance, and prejudicial versus probative value. While emails and texts can provide compelling evidence, attorneys need to be strategic in determining if and how to use them, being aware of privacy concerns. The key points around using emails and texts as evidence in court cases are:
- Emails and texts must be properly authenticated to be admissible. This often requires testimony to confirm the identity of the sender.
- Hearsay rules apply to emails and texts. If being used for the truth of the content, exceptions like party admissions may allow admission.
- Relevance is key. The emails or texts must relate to facts at issue in the case.
- Evidence that is unfairly prejudicial will often be excluded by the judge.
- Privacy expectations for emails and texts are becoming recognized more by courts.
- Strategic attorneys will weigh the benefits and risks before introducing emails or texts.
- With proper foundation and authentication, emails and texts can be compelling forms of evidence.
By understanding the standards for admission and leveraging emails and texts carefully, attorneys can utilize modern communication to build strong court cases when appropriate.