EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, December 1, 2007

You've Got Mail: Judge Overrules Hearsay And Authentication Objections To Admission Of E-Mails

Hans Reiser is on trial in Alameda County Superior Court, defending charges that he murdered his ex-wife.  This week, defending those charges became much more difficult after the judge hearing his case denied his motion to exclude certain e-mails that he allegedly wrote to his wife, Nina Reiser, after she filed for divorce in 2004.

In one of these e-mails, Hans allegedly wrote to his wife, "It is 1941 and you are the Nazis and you think we (Reiser and his divorce attorney) will not suffer the necessary amount to defeat you."  In another e-mail, Hans allegedly accused Nina of suffering Munchausen-by-proxy syndrome, in that she was "concocting illnesses  for their son, such as 'sensory integration dysfunction,' in which the smallest touch or sound is overwhelming."  Other e-mails accused Nina of being an unstable liar and starting an affair with Hans' friend after Nina and Hans separated.

Nina's divorce lawyer, Shelley Gordon, attempted to introduce these e-mails into evidence, but Hans objected, claiming that the e-mails were hearsay, that they weren't properly authenticated, and that Nina only gave Gordon those e-mails she wanted her lawyer to have.  Judge Larry Goodman overruled Hans' objections and allowed the e-mails into evidence.  His decision was likely proper.

California Evidence Code Section 1220 indicates that a statement "is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party...."  Here, because Hans is the criminal defendant and his e-mail statements are being offered against him, they are admissible under this section.  Furthermore, Hans would have no objection that Nina only gave Gordon those e-mails where he made "incriminating" statements because California Evidence Code Section 1220 only allows for the admission of statements which tend to incriminate a party, not statements that support his case or tend to exonerate him.

It is unclear from the article describing the case how the e-mails were authenticated, but courts have been pretty liberal in finding that e-mails have been properly authenticated.  In Fenje v. Feld, 301 F.Supp.2d 781, 809 (N.D. Ill. 2003), the United States District Court for the Northern District of Illinois surveyed cases in several courts and determined that "[e]-mail communications may be authenticated as being from the purported author based on an affidavit of the recipient; the e-mail address from which it originated; comparison of the content to other evidence; and/or statements or other communications from the purported author acknowledging the e-mail communication that is being authenticated."  Thus, as long as the e-mail address from the sender of these e-mails belonged to Hans, the e-mails would have been properly authenticated.



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