Authenticity

Here’s a reminder about authenticating emails based on a posting from Prof. Colin Miller at EvidenceProfBlog. To paraphrase Prof. Miller:

And, like its federal counterpart, [Mil. R. Evid.] 901(b)(4) provides that By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (4) Distinctive Characteristics and the Like. – Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

Prof. Miller cites to United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000). Note that in the case cited the counsel had failed to object and preserve the objection.

There are (typically) several evidentiary/admissibility issues that frequently come up when the prosecution wants to admit emails (or text messages). My experience generally is that someone, usually the witness or law enforcement have selectively provided an email which is then cut-and-pasted for the “relevant” part by law enforcement. Usually law enforcement does not ask the witness to provide the full email or text string. That cherry-picked email or text message is then emailed to the trial counsel, the trial counsel prints out the email, and the trial counsel offers the item, the trial counsel also failing to recover the full email or text string. By the time you get to court there are issues of whether the email string or text string is available because of the passage of time. Trial counsel don’t seem to blush at this failure to preserve potential evidence.

1. Completeness under Mil. R. Evid. 106. The defense should always require production and discovery of the whole email or text chain where it is obvious that the proffered exhibit is a part of a chain. Why, well because other parts of the email chain may set up a contradiction or help to explain what is being offered. So for example NCIS supplies the trial counsel with an email from the complaining witness in which the accused says, “OK, I did it.” But what they don’t supply is the other parts of the email in which the accused also explains, “I did it because you told me I could.” It would seem to me that a portion of an email or text message is unreliable. That the message can only become reliable once the whole string is produced. The whole string being part of “the circumstances.”

2. Completeness under Mil. R. Evid. 304(h)(2).

Completeness. If only part of an alleged admission or confession is introduced against the accused, the defense, by cross-examination or otherwise, may introduce the remaining portions of the statement.

And don’t forget about United States v. Rodriguez, 56 M.J. 336 (C.A.A.F. 2002), and United States v. Gilbride, 56 M.J. 428 (C.A.A.F. 2002) on the general issue of completeness under Mil. R. Evid. 304(h)(2).

3. Who is the witness. The trial counsel who printed out the piece of evidence that is typically being introduced. You can tell because their name is blazoned on the top of the document courtesy of Outlook print functions.

Take a look at United States v. Taylor, 61 M.J. 157 (C.A.A.F. ); United States v. Johnson, ACM 34889, 2004 LEXIS 133 (A. F. Ct. Crim. App. May 21, 2004).