May 21, 2011
Massachusetts Supreme Court Finds Email Sufficiently Authenticated Based on Surrounding Evidence -- Commonwealth v. Purdy
[Post by Venkat Balasubramani]
Commonwealth v. Purdy, 2011 WL 1421367 (Mass.; Apr. 15, 2011)
Defendant was prosecuted and convicted for maintaining a house of prostitution and deriving support from the earnings of a prostitute. The trial judge admitted various emails allegedly authored by the defendant. The emails related to the massage service offered by the defendant. Predictably, one of the emails had the cliched "personal assistant with benefits?" subject line.
Defendant objected to admission of the emails on the basis that the emails were not properly authenticated as having been authored by him. Defendant did not contest that the emails came from the computer which was seized from the premises in question following defendant's arrest. Defendant pointed out that he shared his computers with others at the salon and denied authoring the emails. The prosecution had put forth evidence that the emails originated from an email address that bore defendant's name, and that defendant was able to recite (from memory) the passwords necessary to access the computer and its programs. The emails had additional characteristics that indicated that they were likely to have been authored by the defendant. For example, one of the emails had the defendant's picture attached to it.
The court rules that admission of the emails was not improper and there was sufficient evidence to let the jury determine if the emails were authored by the defendant. The court cites to other cases dealing with circumstantial authentication such as phone calls and letters, and notes that the principles remain the same with respect to email or social networking evidence:
While emails and other forms of electronic communication present their own opportunities for false claims of authorship, the basic principles of authentication are the same. Evidence that the defendant's name is written as the author of an email or that the electronic communication originates from an email or a social networking website such as Facebook or MySpace that bears the defendant's name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant. There must be some "confirming circumstances" sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the emails.
The court concludes that those additional "confirming circumstances" were present here. The emails originated from an account bearing defendant's name and acknowledged to be used by the defendant. The emails were found on the hard drive of a computer the defendant acknowledged he owned. In addition, at least one email contained a photograph of the defendant.
The court contrasts this case with Commonwealth v. Williams, where the court held that MySpace messages were not property authenticated as having been authored by the defendant's brother. (Here's a previous blog post discussing Commonwealth v. Williams: "MySpace Evidence: Maryland Appeals Court Allows Circumstantial Authentication.") In that case, there was no testimony "regarding how secure a MySpace Web page is, who can access it, or whether codes are needed for such access." In addition, the author of the messages in Williams did not identify himself in the messages.
Social networking communications are subject to a different standard than other communications such as instant message conversations, text messages, and emails. It's unclear as to whether this is based on the view that anyone can create a social network profile in someone else's name, or whether a factfinder can more easily determine if the person who is alleged to have authored the communication actually did so, because emails and other communications often provide greater context. Courts have also alluded to the fact that it's often unclear who can post messages on a social networking site and therefore difficult to tell whether a particular message should be attributed to the person who owns the site or someone else.
In the context of email, it should be sufficient to show that the person "owned" the email account in question or that the emails were sent from a computer which the author owned. Here, it's conceivable that one of the defendant's co-workers (or underlings) may have sent the email, but the court's decision leaves it up to the defendant to explain this in order to rebut the claim of authorship.
Previous posts and related posts:
"Maryland Supreme Court Rejects "Circumstantial Authentication" Standard for MySpace Evidence -- Griffin v. Maryland"
"MySpace Evidence: Maryland Appeals Court Allows Circumstantial Authentication -- Griffin v. Maryland"
Posted by Venkat at May 21, 2011 07:11 AM | Evidence/Discovery
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