This actually occurred in a protective order hearing, but I figured this forum gets more viewers.

The respondent introduced emails supposedly written by my applicant to him basically saying she was going to screw him over with the protective order and he would never see his daughter again. She denied writing them and testified that he had her email account password. He denied having the password.

I objected to lack of authentication and was promptly overruled. What is a good objection to an email that may or may not have come from one of the parties to another? Or is this a question of weight rather than admissibility?

I would try objecting on the basis that it is hearsay and unreliable...that may work.

Unless your respondent testified that he was physically present when the applicant supposedly sent the e-mail, it might be useful to take him on voir dire about his understanding of how e-mail works, including the fact that he didn't actually witness the applicant send the e-mail, then object under rule 602 that the respondent didn't have personal knowledge that the applicant was the declarant of the statement. (I can testify I received a scam e-mail from citibank, but that doesn't establish that citibank sent it if I don't have personal knowledge that citibank was the actual sender.) That dovetails with your authentication objection, and probably would meet the same fate if your judge already was inclined to let the e-mails in. But you can appeal a protective order.

In an orthodox civil case, this kind of issue is usually one for discovery (request for admission of authenticity of statement).

The predicate for the admission of anything seeks to convince the judge that the item of evidence is what it purports to be. For messages, the proponent must establish that (1) the message is indeed something that was sent by through the form it appears to be (an e-mail sent electronically from one address to another) and (2) actually written and sent by the person named as the sender.

For snail mail, there is some support for authenticity when the postmark shows the mail came from the area show by the return address. But, there still must be some evidence to show that the person who wrote the letter is actually the person identified in the return address. We usually have someone identify the signature or handwriting in the letter. Sometimes, we have the document printed and locate a latent print connecting the writer to the letter. I don't know of any case that says the letter itself is self-authenticating.

With an e-mail, there are even more problems of authentication, because there is no signature, handwriting or reliable postmark. And it is doubtful that the receiver of the e-mail is competent to testify about where the e-mail originated. And, given the testimony of the person saying they didn't send it, I would think the judge would need some better evidence of authentication to admit it.

Of course, a judge may admit the evidence and ignore it just to be safe.

And, even if the letter is authenticated, there is the issue of how the contents of the letter meets a hearsay exception.

It's not hearsay if it's purporting to be a statement made by a party opponent; in a protective order, your petitioner is the party opponent. I think your better argument is going to be the authentication issue. I tried an email harassment case and authenticated the emails, but there are a lot of factors that the court relied on (see Massimo v. State, 144 S.W.3d 210). As far as a situation like this, since they were in a relationship, I am going to speculate that he has enough information about her email address and her writing style to be able to give the "right" answers in laying a predicate for authentication (so long as he has a lawyer who can lead him through it). The weight of that evidence, however, is another matter entirely.

I think it's absolutely hearsay. It's an out of court statement that must be admitted under an exception. Without the submitting party establishing clearly that the statement qualifies for an exception, the statement must not be admitted.

Now ask the party submitting the statement to prove that the person who wrote said statement is the party opponent. Without that first step, the exception doesn't apply. I bet they can't for all the reasons raised in the authentication discussion.

Objection: Hearsay

Response: A Statement made by the Party, your honor.

Reply: I'm sorry your Honor, but this paper is not holographic. Without the party's own authenticated handwriting and no foundation to describe the creation of this document, there's no establishment of a proper hearsay exception. This piece of paper is not distinguishable from any document created on a typewriter or any word processor which can be done by any person.

[This message was edited by Philip D Ray on 05-09-07 at .]

Assuming he could meet the elements of authentication, in a *civil* proceeding it is not hearsay. It IS hearsay in the context of a criminal proceeding when our victim is a witness, not a party. But in a civil protective order hearing, in which the victim is an actual party as petitioner, if the respondent can properly authenticate that petitioner sent the emails, they would then not be defined as hearsay because of the party-opponent exclusion. I was advocating for attacking the authentication first, since if it's not authenticated as being petitioner's writings/emails, then you do also have both 403 and hearsay objections at your disposal. The more I think about this, the more I think we're saying the same thing, PR.

Probably so, but you won't get me to admit it.

Is this in front of a jury? If not, then the judge is going to read the emails anyway. Any attempt to authenticate them is going to make reference to the text of the emails, since handwriting alone won't do anything. Once the judge has read them, you're going to have to convince the judge she didn't write them regardless of whether they are technically admitted, so you might as well just put her on the stand to say the Respondent not only beat her up, but he's forged her emails, too. Shouldn't be too much of a leap unless the judge is already inclined to rule against you.

As soon as possible, get subpoenas out to the e-mail provider (EP) of the victim, and the internet service provider (ISP)of the of the victim, if different. I would also do the same for the protective order defendant

The records of the ISP can show if either, or both, people were accessing the internet at the time the records of the EP show the email was sent. If the ISP records show that the victim was logged on the internet at the time the emails were sent, and the EP shows that the address the emails came from is that of the victims ISP, then either the defendnat does have her passwords, and is fairly sharp, or the victim did send the emails.

If the ISP records show that the victim was not on the internet, but the Defendant was, at the time the emails were sent, then you have gone a long way towards showing the emails are fakes, sent by the Defendant. (Although he could, if his attorney reads a lot of spy novels, argue that she has <I>his</I> password, and logged onto the internet as him, then sent the emails in a manner that would make it look as if he had faked them, in order to discredit him.)

Hopefully you will just get lucky, and the EP of the victim will show that the emails did not come from her account, and the EP of the defendant will show that he never got them, which proves that he just cut-and-pasted them together, and they are wholly fake.

In a protective order setting, I tend to agree mostly with Wes and Gretsch. If sent from the applicant to the respondent, why would it not be an admission by a party opponent? Again, considering the obvious authentication issues, one avenue I have not seen discussed here is the context of the message. What if the context indicates relevance to the proceeding?

I agree it could be hearsay if sent by someone other than one of the parties to the PO.

Its true that with a word processor and a tiny bit of knowlege, an e-mail message can be easily faked, however, the header information (which is rarely printed out by anyone) can help with the authentication issue.

Header data tells you the path the data took enroute from sender to recipient, and gives you the info necessary to issue subpoenaes to obtain verification that you are not looking at a fake. Most e-mail programs give you the option to display the header info or not. Most often we don't set it to show because it takes up space on our screens and is normally useless to us. Until we need to trace it.

For a basic understanding of the e-mail process, go to this link...

http://www.stopspam.org/email/headers.html

If Tom has ever sent an email to Joe, then Joe will have good header information and will be able to make a very convincing fake email that appears to be from Tom.

Also these days most people have broadband service that is always on not like in the past when people used dial-up so that log could definately say that someone is online or not online.

Also many people with broadband leave their computer turned on even when not at home. If the computer becomes infected it could be sending out tons of spam email so even an ISP log that shows a particular broadband user sent some email at a particular time it does not necessarily mean anythuing. It is estimated that over half of all spam comes from infected computers, and that over 90% of all traffic on email servers is spam. You might not see all of that spam in your inbox because it is filtered on the server.

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