What are the requirements for introducing emails into evidence?
There are a few key requirements for introducing emails into evidence in court:
- Authentication – You must be able to authenticate that the email is genuine and came from the claimed sender. This usually requires testimony from a witness who can identify the email address and writing style of the sender.
- Hearsay exception – Emails are considered hearsay (out of court statements offered to prove the truth of the matter asserted). Therefore, you must have an applicable hearsay exception, such as the business records exception or opposing party statement exception.
- Original writing – Under the best evidence rule, you must introduce the original email, if possible, not a copy. However, printed copies of emails may be admissible under a print out exception.
- Completeness – Under the rule of completeness, if you seek to introduce part of an email chain, you may need to introduce the entire chain to avoid misleading the jury.
So in summary, you must properly authenticate the email, overcome any hearsay objections, satisfy the original writing rule, and comply with the rule of completeness.
How do you authenticate an email?
To authenticate an email, you generally need testimony from a witness with knowledge who can state that:
- The email contains the sender’s email address or other identifying information
- The writing style, signature, or other characteristics match that of the alleged sender
- The witness received the email from the sender’s email address
This witness testimony establishes that the email is what the proponent claims it to be – a genuine communication from the alleged sender.
Some additional methods of authenticating emails include:
- Using metadata – The email’s metadata, such as the digital sender info, can help authenticate it.
- Obtaining an admission – The opposing party can admit or stipulate to the email’s authenticity.
- Using computer records – Business records from the sender/recipient’s computer may authenticate.
- Tracing the email path – You can trace the email’s path through servers back to the sender to authenticate.
How do you overcome hearsay objections to email evidence?
Since emails are considered hearsay, you will need to point to a hearsay exception to get the email admitted into evidence over a hearsay objection.
Some of the main hearsay exceptions used for email evidence include:
- Opposing Party Statement – Any statement offered against an opposing party that was made by that party is, by definition, not hearsay. So any email authored by an opposing party would likely be admissible non-hearsay.
- Business Records – Properly authenticated emails may qualify under the business records exception as records of a regularly conducted business activity.
- State of Mind – Emails reflecting the state of mind of the author, such as motive, intent, or feeling, may be admissible.
- Excited Utterance – Emails authored while still under the stress of excitement from a startling event may qualify as an excited utterance.
- Present Sense Impression – Emails describing an event immediately after perceiving it may qualify as a present sense impression.
The proponent of the email evidence has the burden to establish that a specific hearsay exception applies. The judge then decides whether to admit the email over the hearsay objection.
How do you satisfy the original writing rule for emails?
The original writing rule generally requires the introduction of the original document at trial. However, for emails there are some important exceptions:
- Email print outs are usually admissible as duplicates, especially if the original is unavailable through no fault of the proponent.
- Copies of emails produced during discovery may also be admissible.
- The court may allow secondary evidence, such as oral testimony about the contents, if the original email cannot be obtained.
- The opposing party can also waive objections to the use of a copy rather than original email.
While it is best to introduce the original native format email file, practical realities justify allowing properly authenticated print outs or other copies into evidence.
When do you need to satisfy the rule of completeness for emails?
If you seek to introduce only part of an email conversation, the rule of completeness requires introduction of any other parts necessary to (1) explain the admitted portion, (2) avoid misleading the jury, or (3) provide proper context.
This prevents misleading “cherry-picking” of selected excerpts from an email conversation.
Some examples of when additional emails may need to be introduced under the rule of completeness include:
- When the initial email expressly refers to another email
- When a response email clarifies a statement made in the initial email
- When a prior email is necessary to provide context for the excerpt being introduced
- When exclusion of other emails would create confusion or ambiguity
The key is to avoid misleading impressions through selective introduction of connected communications. The rule of completeness aims to safeguard truth and fairness.
Can you introduce print outs of email conversations?
Yes, print outs of email conversations are generally admissible as evidence, even though they are copies rather than original electronic documents. The key is to properly authenticate the printed emails.
Some foundation requirements for admitting email print outs include:
- Testimony from a witness identifying the printed emails and confirming they accurately reflect the actual email conversation.
- Testimony that the computers and printers were in working order and produced accurate copies.
- Circumstantial evidence indicating the printed emails are authentic (metadata, addresses, etc.)
Copies produced in the ordinary course of business may also qualify for the business records exception to the hearsay rule.
As long as a foundation for reliability is laid, the court has discretion to admit printed copies of emails into evidence rather than requiring production of native electronic versions.
Can you introduce summaries of voluminous emails?
Yes, under the Federal Rules of Evidence, voluminous writings which cannot be conveniently examined in court may be presented in the form of a chart, summary or calculation. This would allow a summary of numerous emails to be introduced rather than printing out and presenting hundreds of individual messages.
However, certain conditions must be met:
- The underlying emailed writings must be admissible evidence.
- The originals must be made reasonably available for examination by the other parties.
- The summary must be accurate and non-prejudicial.
So for a large trove of emails relevant to the case, a summarized printout or chart may be preferable to presenting box loads of individual printed messages, provided the above conditions are satisfied.
Can you authenticate an email thread by the subject line?
The subject line alone is unlikely to be sufficient to fully authenticate an email thread. While the subject line provides some circumstantial evidence, additional testimony would be needed to confirm the authenticity of the emails.
Some additional authentication techniques that could be used in conjunction with a distinct subject line include:
- Obtaining testimony from the sender and recipients verifying the email thread.
- Comparing the sender’s email address to a known business email account.
- Analyzing the writing style, signature block, and contents to match the alleged sender.
- Examining metadata and tracing the email path through servers back to the purported sender.
The goal is to demonstrate that the email thread is what the proponent claims it to be. The subject line alone does not prove the substance of the communications is genuine and unaltered. But it can contribute to a circumstantial showing of authenticity when supplemented by sufficient additional evidence.
Can you introduce printed copies of chats, IMs, and text messages?
Yes, print outs of chats, instant messages (IMs), and text messages may be admitted into evidence if properly authenticated. The same rules of evidence apply.
To authenticate printed chats, IMs, or texts, you would need testimony from a witness with knowledge who can confirm:
- The copies of the messages accurately reflect the actual communications.
- The messaging account and phone number/device belonged to and were used by the alleged sender.
- Recognition of the writing style, signature, and details matching the purported sender.
Circumstantial evidence such as data from the messaging account and phone records can also support authenticity.
The copies must satisfy the original writing rule, but printed chats, texts, and IMs are admissible as duplicates if the originals are unavailable.
Overall, printed copies of electronic communications can be introduced into evidence if properly authenticated and any hearsay exceptions are met.
Can deleted emails be introduced into evidence?
Yes, deleted emails can still be introduced into evidence if recovered and properly authenticated.
Techniques for recovering deleted emails include:
- Retrieving them from the sender’s and recipient’s email trash folders.
- Using forensic data recovery tools to restore deleted files.
- Obtaining them from the email service provider through a subpoena.
- Accessing them from offline email backup files such as a .PST file.
Once recovered, the emails must be authenticated through witness testimony or circumstantial evidence. Witnesses who originally sent/received the emails can authenticate them.
Metadata showing the deleted files matched the original messages can authenticate them.
The hearsay rule and original writing rule still apply but can be overcome the same as with existing emails. Overall, the mere fact an email was deleted does not necessarily bar it from evidence.
Can you introduce expert witness testimony on email evidence?
Yes, expert witness testimony may be used to introduce email evidence in court in several situations:
- Email Forensics Experts – To explain how deleted emails were recovered or authenticate based on forensic metadata analysis.
- IT Experts – To authenticate emails by explaining and tracing their electronic path from sender to recipient.
- Writing Analysis Expert – To compare writing style and word usage to attribute authorship of anonymous emails.
- Industry Experts – To provide context for technical terminology or acronyms used in industry-related emails.
- Summary Witness – To summarize voluminous email records according to the Federal Rules of Evidence.
Expert opinions must comply with reliability, relevance, and qualification requirements. But properly qualified expert testimony can help interpret and explain email evidence to judges and juries.
In summary, introducing emails into evidence requires:
- Proper authentication – through witness testimony, metadata, or expert analysis.
- Satisfying hearsay exceptions – as opposing party statements, business records, or under other exceptions.
- Compliance with original writing rule – by using originals or accounting for unavailability.
- Meeting completeness requirements – to avoid misinterpretation.
With a solid foundation laid, emails can be a valuable source of documentary evidence in civil and criminal cases. Following best practices for authentication and chain of custody, while navigating evidentiary hurdles, is key to successfully introducing emails into evidence.