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ADMISSIBILITY OF E-MAILS AND SOCIAL MEDIA CONTENT - MN Bench Book - Trial Procedures & Practices for Judges
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ADMISSIBILITY OF E-MAILS AND SOCIAL MEDIA CONTENT

From MN Bench Book - Trial Procedures & Practices for Judges

Click on “TRIAL PROCEDURES & PRACTICES FOR JUDGES” above to return to main page

This section prepared by Talon Powers, law student University of Minnesota Law School.

Introduction

The leading case on the question of whether electronic evidence is admissible is Lorraine v. Markel American Insurance Company, [1]. Where Minnesota’s rules of evidence are substantially similar to the federal rules of evidence, Minnesota courts favor following federal precedent. [2]. Lorraine established five general evidentiary questions that must be affirmatively answered before electronic media evidence can be admissible.

Evidence must be relevant in order to be admissible. (Minnesota Rule of Evidence 402), The standards for electronic evidence being relevant are generally no different from non-electronic evidence. Evidence is considered relevant where it “logically tends to prove or disprove a material issue in fact”. [3]
Evidence must be authentic in order to be admissible. (Minnesota Rule of Evidence 901(a)) Authenticity is generally the central battle concerning admissibility of evidence, because it is fairly straightforward to doctor electronic evidence. The question that must be answered to determine authenticity is straightforward: “Is this evidence what it purports to be?” Minn. R. Evid. 901(a).
In order to be admissible evidence must not be hearsay.[4] Hearsay is defined in the rules as a statement, other than one made by a witness in court, offered to prove the truth of a matter.[5] The hearsay rules, however, contain dozens of specific exceptions that may allow the evidence to be permitted. Specific exceptions that may apply to text messages and social media include their use as a recorded recollection, and their reflection on personal or familial history and character.[6]
Evidence must be provided in its “original writing” except as otherwise provided.[7] The exceptions, however, regularly allow a duplicate to be provided unless there is a genuine authenticity question or an unfairness question, which seems unlikely if authenticity has been established.[8]
Evidence is not admissible where “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”[9]

E-Mail Authentication Analysis

The text of e-mail messages and the series of e-mails that a given e-mail is in provide adequate evidence to establish (authenticate) that the sender named in the offered e-mail was the actual sender. [10] The content of e-mails indicating that the sender had specific, unique and identifiable knowledge about the recipient of the e-mail also contribute to a finding of sufficient authenticity[11]

In State v. Bohlman,[12] a criminal sexual conduct trial, the prosecution sought to have particular e-mails admitted into evidence. These emails contained the defendant's name and e-mail address. The victim testified that she frequently sent e-mails to and received e-mails from defendant from e-mail addresses appearing on e-mails sought to be introduced. The trial judge determined that the prosecution had provided adequate foundation for admission of e-mails into evidence.[13]

On appeal, the defendant argued that the district court abused its discretion by admitting into evidence e-mails that the victim testified were from him. Bohlman claims that because there was insufficient proof that he authored the e-mails, there was not adequate foundation for their admission. The adequacy of the foundation for the admission of physical evidence is reviewed for an abuse of discretion. [14] Before the admission of an exhibit into evidence, it must be authenticated with evidence sufficient to support a finding that the matter in question is what its proponent claims it to be.[15] Testimony of a witness “with knowledge” is one way to prove that an exhibit is what it is claimed to be.[16] The victim testified that the e-mails sought to be admitted contained Bohlman's name and e-mail address and that she frequently sent e-mails to and received e-mails from Bohlman at the e-mail address appearing on the e-mails sought to be introduced. The Court of Appeals concluded that the victim's testimony provided an adequate foundation for the admission of the e-mails, and therefore the district court did not abuse its discretion by admitting the e-mails.

Admissibility of Text Messages Analysis from the Decision Rodriquez v. State[17]

Rodriquez v. State is a thorough and complete analysis of the issues and factors a judge should consider in determining the admissibility of a text message sent as an e-mail from a mobile phone. The challenging admissibility issue in this case was that the text messages allegedly sent by the defendant were sent from the victim's cell phone which had been stolen from the victim by the defendant.

Only relevant evidence is admissible
Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
Authentication "‘represent[s] a special aspect of relevancy,’ ... in that evidence cannot have a tendency to make the existence of a disputed fact more or less likely if the evidence is not that which its proponent claims.” [18]
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims.
Because the authentication inquiry is whether “the matter in question is what its proponent claims,” the proponent of the evidence “can control what will be required to satisfy the authentication requirement by deciding what he offers it to prove.” [19]

What is necessary to authenticate a text message?

Establishing Authorship: As with non-electronic documents generally, the identity of the sender is critical to authenticating text messages. The difficulty that frequently arises in text message cases is establishing authorship. Establishing the identity of the author of a text message through the use of corroborating evidence is critical to satisfying the authentication requirement for admissibility.
Corroborate the Sender: A person cannot be identified as the author of a text message based solely on evidence that the message was sent from a cellular phone bearing the telephone number assigned to that person because “cellular telephones are not always exclusively used by the person to whom the phone number is assigned.” Some additional evidence, which tends to corroborate the identity of the sender, is required.
Corroborating Evidence: Circumstantial evidence corroborating the sender's identity may include the context or content of the messages themselves, such as where the messages “contain factual information or references unique to the parties involved..." Other jurisdictions similarly have focused on the sender's identity and looked to the context and content of the text messages for sufficient circumstantial evidence identifying the sender. [20] Such factors include:
  • Identifying details in text messages that could have been known by only a small number of persons, including defendant;
  • Defendant's conduct after the messages were sent; and
  • Nickname used in one message as circumstantial evidence sufficient to link defendant to the messages.[21] pointing to information in the message and that sender identified himself twice using the victim's first name as sufficient circumstantial evidence that the victim sent the messages).
Establishing and Contradicting Authentication: When there has been an objection to admissibility of a text message, the proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission. Once a text message is admitted into evidence, the opponent may rebut its authentication, and it is for the jury to decide whether the proponent sufficiently proved his or her claims regarding the text message. “Every authentication or identification is rebuttable by evidence or other showing sufficient to support a contrary finding.”[22]
Jury has final say on authentication: Before admitting evidence for consideration by the jury, the district court must determine whether its proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.... Although the district court is charged with making this preliminary determination, because authentication is essentially a question of conditional relevancy, the jury ultimately resolves whether evidence admitted for its consideration is that which the proponent claims.”
Hearsay objections to text messages: Test the content of text messages against established hearsay doctrines. Hearsay is a statement offered in evidence to prove the truth of the matter asserted.[23] As a general rule, hearsay is inadmissible.[24] A statement offered against a party “of which [that] party has manifested adoption or belief in its truth, is not hearsay.[25]
Text messages do not usually raise confrontation issues: Unless the text messages were elicited by a law enforcement official in anticipation or preparation for trial, the text messages are neither hearsay nor testimonial. See UPDATE 10-8 - DETERMINING ADMISSIBILITY OF HEARSAY - CRAWFORD V. WASHINGTON.[26]


<references>
  1. 241 F.R.D. 534 (D. Md. 2007)
  2. See, e.g., Patterson v. Wu Family Corp., 608 N.W.2d 863, 867 n.4 (Minn. 2000)
  3. Boland v. Morrill, 270 Minn. 86, 99, 132 N.W.2d 711, 719 (1965).
  4. See Minn. R. Evid. 802.
  5. See Minn. R. Evid. 801.
  6. See Minn. R. Evid. 803(2), (19), (21).
  7. See Minn. R. Evid. 1002.
  8. See Minn. R. Evid. 1003.
  9. Minn. R. Evid. 403.
  10. United States v. Fluker, 7th Cir. No, 11-1013, 10/26/12
  11. Id.
  12. 2006 WL 915765 (Minn.App. 2006).
  13. Minn. R. Evid. 901(a), (b)(1).
  14. See State v. Bellikka, 490 N.W.2d 660, 663 (Minn.App.1992) ( citing State v. Williams, 337 N.W.2d 689, 691 (Minn.1983)), review denied (Minn. Nov. 25, 1992).
  15. See Minn. R. Evid. 901(a).
  16. Minn. R. Evid. 901(b)(1).
  17. 273 P.3d 845, Nev.,2012.
  18. U.S. v. Branch, 970 F.2d 1368, 1370 (4th Cir.1992) (alteration in original) (citation omitted) (quoting Fed.R.Evid. 901(a)(advisory committee's note).
  19. 31 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 7104, at 31 (1st ed. 2000).
  20. See, e.g., Dickens v. State, 175 Md.App. 231, 927 A.2d 32, 36–37 (2007)
  21. See State v. Taylor, 178 N.C.App. 395, 632 S.E.2d 218, 230–31 (2006).
  22. U.S. v. Branch, 970 F.2d 1368, 1370–71 (4th Cir.1992).
  23. See Fed. R. Evid. 801.
  24. See Fed. R. Evid. 802.
  25. Fed. R. Evid. 801(d)(2).
  26. See Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).