Alabama Court of Civil Appeals Joins Court of Criminal Appeals On Authentification of Email Evidence
As posted earlier this year on our Appellate Law Webpage, the Alabama Court of Criminal Appeals issued an opinion addressing the admission of email evidence at trial. This week the Alabama Court of Civil Appeals adopted the holding of the Criminal Appeals decision. In Smith v. Smith, a divorce modification appeal from the Mobile County Circuit Court, the Court of Civil Appeals adopted the reasoning in State v. Culp, to hold that the distinctive characteristics of the emails and texts supported the authentication and admissibility of the email evidence.
In the underlying case, the trial court had modified the divorce decree, changing primary custody of the parties children from the mother to the father. The evidence at the trial of the modification case included testimony by a former friend of the mother regarding email and text conversations between the witness and the mother in which the mother told her of her attempts to purchase ADHD and pain medications. The mother denied sending the emails and texts, and argued the email evidence and text message evidence was not property authenticated under Alabama Rules of Evidence, Rule 901.
In deciding the issue of authentication, the Alabama Court of Civil Appeals looked to the November 2014 decision of the Alabama Court of Criminal Appeals in State v. Culp, CR 13-1039, in which the Court of Criminal Appeals held that email evidence may be authenticated by distinctive characteristics of the emails themselves, as well as such things as appearance, content, substance, internal patterns, or other distinctive characteristics of the emails. The Criminal Appeals Court in Culp quoted the following language from a 2012 Texas Appeal:
In some cases, the purported sender actually admitted to authorship, either in whole or in part, or was seen composing it. In others, the business records of an internet service provider or a cell phone company have shown that the message originated with the purported sender’s personal computer or cell phone under circumstances in which it is reasonable to believe that only the purported sender would have had access to the computer or cell phone. Sometimes the communication has contained information that only the purported sender could be expected to know. Sometimes the purported sender has responded to an exchange of electronic communications in such a way as to indicate circumstantially that he was in fact the author of the particular communication, the authentication of which is in issue. And sometimes other circumstances, peculiar to the facts of the particular case, have sufficed to establish at least a prima facie showing of authentication. Tienda v. State
The Alabama Court of Civil Appeals noted that the email evidence and text where essential “conversations” in which the mother and the witness responded to each other using tones, syntax, and other characteristics that were consistent over months of conversations. A reading of the opinion indicates that the overall flow of conversation which was in a logical or expected order certainly influences the issue of admissibility, as does the fact that the email evidence and texts spanned a long period of time. The consistency over a period of time is consistent with the same person being the author of the emails. The Court of Appeals also considered other characteristics of the email evidence such as the fact that they covered a variety of topics that were fact specific to the witness and/or the mother, such as particular events in their lives, or current events. All in all, the Court of Appeals held that there was sufficient evidence of characteristics to support the admission of the email evidence and text evidence.
Also worthy of note is the Court of Appeals express rejection of the mother’s argument that the proper method of authentication of the email evidence would have been to subpoena the telephone records, etc, of the sending party to see if they matched the records of the receiving party. The Court of Appeals expressly declined to adopt such a rule. The rejection of the mother’s position by the Court of Appeals seems appropriate especially given how burdensome it is to obtain such records, most of which are out of state.
