EvidenceProf Blog

Lie To Me: Court Of Appeals Of Arkansas Finds Trial Court Erred In Prior Inconsistent Statement Ruling

Like its federal counterpart, Arkansas Rule of Evidence 613 sets forth the procedure for admitting prior inconsistent statements for impeachment purposes. It provides that

(a)  Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.  

(b)  Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2). 

So, let's say that a witness makes a statement during trial and acknowledges that she made a prior inconsistent statement before trial. Can she thereafter be impeached via her prior inconsistent statement under Rule 613? According to the recent opinion of the Court of Appeals of Arkansas in White v. State, 2010 Ark. App. 588 (Ark.App. 2010), the answer is "no." I agree.

In White, Derrick White  was convicted  of first-degree battery after he allegedly shot Renekia White in the face.

The incident occurred at the home of Carey Walton, with whom Derrick White had resided until Walton ordered him out of the apartment after an argument the night before. On the day of the shooting, White had returned to Walton's residence to pick up some of his personal property. He again argued with Walton and punched her in the face. Renekia, a friend of Walton, was outside on the porch and was shot by White when he was leaving the apartment.

There was ample testimony, including that of White himself, that White pulled a handgun from his pocket, the gun discharged, and a bullet struck Renekia in the face. However, White claimed at trial that the shooting was accidental. None of the witnesses at trial testified that they heard White make any threats to use the weapon. Walton did, however, admit at trial that she made a statement to police shortly after the shooting in which she said that she heard White say, “I'm going to kill all of y'all.” When confronted by the statement, Walton attempted to explain the inconsistency by claiming that she was “hysterical” and that she was angry with White at the time.

At trial,

Walton initially claimed she did not remember what she told police that night, but after having her recollection refreshed by her written statement, she recalled the interview. She was directed to read a portion of the statement in which she told police that White had stated that “I'm going to kill all of y'all,” and then “raised the gun up.” Walton admitted that she remembered telling police that she saw the gun and fled because she thought that White was going to shoot her. Walton nonetheless denied hearing White make his threat, and claimed she was only repeating what Renekia had told her. She further claimed that her memory was impaired because she was “hysterical,” although she conceded that she “probably remembered the incident better back when it happened” than at the time of trial.

On cross-examination, Walton stated that she “stretched” the truth because she was mad at White. She unequivocally stated that she neither saw a gun nor heard White make the previously described threat. On re-direct, Walton confirmed that she lied to police when she stated that she saw a gun and heard White make his threat.

Thereafter,

The State then called Little Rock Police Officer Rian Heck. When Officer Heck attempted to testify about Walton's statement, White's counsel made a hearsay objection and responded to the State's argument that it would be a prior inconsistent statement with the assertion that it was inadmissible because Walton had “already admitted that she's lied in her earlier statements to the police. This is an unsworn [statement], and she's got sworn testimony today .” The trial court admitted the testimony to “impeach Walton.” The State also called Little Rock Police Officer Rodney Blocker who, over White's objection, also testified about the statement that Walton made to the police. During closing arguments, the State used Walton's unsworn statement that, prior to the shooting, she claimed that White said “I'm going to kill all of y['all.]"  

After he was convicted, White appealed, claiming, inter alia, that the trial court improperly allowed for the admission of Walton's prior inconsistent statements under Arkansas Rule of Evidence 613 because Walton had already admitted that she lied to the police in her earlier statements. The Court of Appeals of Arkansas agreed, concluding that "it is well-settled law that Walton's prior statement was not admissible for impeachment purposes under Rule 613(b) of the Arkansas Rules of Evidence because she admitted that she made a prior, inconsistent statement." (The court nonetheless affirmed based upon a finding of harmless error).

I agree with the court's ruling. A prior inconsistent statement not made under oath is hearsay and only admitted to impeach the witness, i.e., to show that she is untrustworthy as a witness. When the witness admitted to making a prior inconsistent statement, the inconsistency is revealed, and the only purpose in admitting the prior inconsistent statement would be to show the jury the substance of the prior statement, which is improper because the statement is hearsay.

-CM

Gasping At Straws: Fourth Circuit Finds Rule 606(b) Doesn't Cover Party's Observation Of Jury's Reaction To Evidence

Federal Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

It is important to note, though, that the Rule only covers a juror's testimony and/or a juror's affidavit, a point not quite made clear by the recent opinion of the Fourth Circuit in Keeshan v. Eau Claire Cooperative Health Centers, Inc., 2010 WL 3556172 (4th Cir. 2010).

In Keeshan,

Dr. Susan Keeshan, a physician who is Jewish and of Hispanic descent, sued her former employer, Eau Claire Cooperative Health Centers, Inc. (the Cooperative), alleging under Title VII that she was terminated in retaliation for filing a complaint claiming that her supervisors discriminated against her because she is not black. Keeshan also brought claims under state law for wrongful discharge and nonpayment of wages. The district court granted summary judgment to the Cooperative on the wrongful discharge claim. After a trial the jury found for the Cooperative on the Title VII retaliation and South Carolina Payment of Wages Act claims[,] Keeshan appeal[ed]....

One of the grounds for Keeshan's appeal was that

Over objection from Keeshan's counsel, the jury heard Keeshan testify on cross-examination about her income after leaving the Cooperative. Keeshan said that her yearly income in 2007 was $300,000. Keeshan's counsel argued that her income after 2005 was irrelevant because she was not seeking back pay for any period after that year. The Cooperative's counsel responded that her current income was relevant in that it "show[ed] that she is much better off today than if she had stayed where she was."...Moreover, the Cooperative's counsel maintained that Keeshan's current salary was relevant to her request for punitive damages. The court was persuaded by the last point and ruled that the 2007 salary testimony was admissible if Keeshan sought punitive damages.

In her subsequent motion for a new trial, Keeshan argued "that the jury was unduly prejudiced after learning of her $300,000 salary" and "submitted an affidavit swearing that she heard 'gasps from the jury box” and that she could tell from the astonished looks on jurors' faces that they had already decided against her." The district court denied this motion, and the case eventually reached the Fourth Circuit on Keeshan's ensuing appeal. The Fourth Circuit agreed with Keeshan that 

that the district court's admission of her testimony on her post-termination income was based on an erroneous legal premise and was therefore an abuse of discretion. The court found the testimony relevant to Keeshan's request for punitive damages, which she sought under her Title VII retaliation claim. Title VII permits recovery of punitive damages from private employers "if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual."...This standard requires the plaintiff to show that the employer "discriminate[d] in the face of a perceived risk that its actions will violate federal law."...It is axiomatic that the purpose of punitive damages is to punish and deter defendants. "Most often ... eligibility for punitive awards is characterized in terms of a defendant's motive or intent."...That Keeshan's salary nearly doubled after leaving the Cooperative may indicate that Keeshan was better off in another job. But her improved financial status is irrelevant to her contention that the Cooperative terminated her with malice or reckless indifference to her right under Title VII to bring a racial and religious discrimination complaint.

In finding that this evidence was somewhat prejudicial (although the court ultimately found that its admission constituted harmless error), the Fourth Circuit relied upon Keeshan's affidavit, rejecting the Cooperative's argument that it was inadmissible under Federal Rule of Evidence 606(b) by finding that "Keeshan's affidavit is more accurately characterized as Keeshan's impression of the effect of her testimony on the jury, not evidence of a juror statement."

My response is that even if Keeshan's affidavit stated that she heard a juror saying, "I'm not giving her a dime," it still wouldn't have been covered by Rule 606(b). The reason is that the rule only covers juror affidavits, not affidavits by individuals who overhear conversations by members of the jury. Indeed, in the Supreme Court's most significant opinion on Rule 606(b) -- Tanner v. United States, 483 U.S. 107 (1987) -- the Court reaffirmed the Fourth Circuit opinion in United States v. Taliaferro, 558 F.2d 724, 725-726 (4th Cir. 1977), in which the court found that a marshal could properly testify about jury deliberations when he accompanied them to a club where the judge sent jurors to dine and deliberate.

-CM

Domestic Disturbance: Court Of Appeals Of Michigan Case Reveals DV Exception To Character Evidence Proscription In Michigan

Like its federal counterpart, Michigan Rule of Evidence 404(b) provides in relevant part that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion....

That said, some states have a domestic violence exception under which the prosecution can present evidence of prior domestic violence to prove the defendant propensity to commit such acts and his likely conformity with that propensity at the time of the crime charged. And, as the recent opinion of the Court of Appeals of Michigan in People v. Branion, 2010 WL 3564746 (Mich.App. 2010), makes clear, Michigan has such an exception.

In Branion,

On September 22, 2008, defendant and his wife of 16 years, the victim in this case, were separated. That evening as the victim sat alone and watched television in her bedroom, defendant stood outside her open window and squirted lighter fluid through the screen. Defendant ignited his lighter and set the window, windowsill and curtains ablaze. The victim's roommate, and owner of the home, put out the fire and he and the victim escaped to a neighbor's house across the street to telephone the authorities. From this location, the victim saw defendant running away from her residence. Before trial, the prosecutor sought to admit evidence of seven prior instances of domestic abuse between defendant and the victim, one of which involved defendant attempting to set the victim on fire with lighter fluid.

The trial court admitted this evidence pursuant to, inter alia, MCL 768.27b, which provides in relevant part that

in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other acts of domestic violence is admissible for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence 403.

After Branion was convicted of assault with intent to murder and arson, he appealed, claiming, inter alia, that the trial court should have deemed the subject evidence inadmissible because it failed the balancing test set forth by Federal Rule of Evidence 403, which provides that

Although relevant, evidence may be excluded if 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. 

The Court of Appeals of Michigan disagreed, finding that

The focus behind MRE 403 is whether the evidence was unfairly prejudicial, because the prosecutor's evidence, and all relevant evidence, for that matter, is inherently prejudicial to some extent...."This unfair prejudice refers to the tendency of the proposed evidence to adversely affect the objecting party's position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury's bias, sympathy, anger, or shock."...

Here, the prior acts of domestic abuse were highly probative for the prosecution to show defendant's character for assaulting the victim and his propensity to commit acts of violence against her window....

The evidence was prejudicial, but there was no danger that marginally probative evidence would be given undue weight or that it was inequitable for the prosecution to use it....The evidence also did not inject extraneous considerations into trial.

-CM

The Marrying Man: Supreme Judicial Court Of Massachusetts Finds Defendant Marrying His Alleged Victim Triggered Forfeiture By Wrongdoing Doctrine

On Monday, I posted an entry about the strangest spousal testimonial privilege case that I have ever seen. In that case, the State filed an order to show cause seeking to enjoin a planned marriage between the defendant and the alleged victim's sister until after the defendant's trial so that the sister could not invoke the spousal testimonial privilege. It took me a mere two days to find a spousal testimonial privilege that topped that one. Here is the question raised by the recent opinion of the Supreme Judicial Court of Massachusetts in its recent opinion in Commonwealth v. Szerlong, 2010 WL 3530019 (Mass. 2010): Does the forfeiture by wrongdoing doctrine apply when the defendant marries his alleged victim so that she can exercise the spousal testimonial privilege? According to the court, the answer is "yes."

In Szerlong,

At approximately 2 a.m. on December 13, 2007, the defendant entered his girl friend's home, grabbed her by the throat while she was asleep, and held a knife to her throat. On December 21, 2007, the defendant was charged in a criminal complaint with assault and battery...; assault by means of a dangerous weapon...; and home invasion,...and a warrant was issued for his arrest. The defendant and the victim had not been engaged to marry at the time of the assault, but they were married on January 5, 2008, at the North Attleborough town hall. On January 15, the defendant voluntarily surrendered himself to the court and was arraigned. At that time, the Commonwealth moved for a dangerousness hearing....At the dangerousness hearing on January 23, the victim testified that she was married to the defendant and invoked her spousal privilege. She continued to invoke her spousal privilege, and refused to testify at trial.

Before trial, however, "the Commonwealth moved in limine to admit hearsay statements made by the victim before she married the defendant to a close friend, to her sister, and to a police detective."  According to the Commonwealth, "by marrying the victim so that she could claim her spousal privilege, the defendant had forfeited his right to object on confrontation and hearsay grounds to the admission of her out-of-court statements under the forfeiture by wrongdoing doctrine." The trial court agreed, the statements were admitted at trial, and the defendant was eventually convicted of assault and battery.

The defendant thereafter appealed, and the Supreme Judicial Court of Masachussetts noted that in Commonwealth v. Edwards, 830 N.E.2d 158 (2005), it found that under Article 12 of the Masachusetts Declaration of Rights and Masachussetts' common-law rules of evidence (Masachussetts doesn't have codified rules of evidence), Masachussetts recognizes the doctrine of forfeiture by wrongdoing as long as

(1) the witness is unavailable; (2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and (3) the defendant acted with the intent to procure the witness's unavailability.

In Edwards, the Supreme Judicial Court of Masachussetts found that the defendant's act which procured the unavailability of the subject witness does not need to be criminal for the doctrine to apply, and the court in Szerlong found that the recent opinion of the United States Supreme Court in Giles v. California, 128 S.Ct. 2678 (2008) didn't require a change to this conclusion because it found that the doctrine broadly covers "conduct designed to prevent a witness from testifying."

Thereafter, the court affirmed the trial court's verdict, finding that

Though he made no findings of fact, the judge implicitly found that the defendant married the victim with the intent to enable her to claim her spousal privilege and thereby avoid testifying against the defendant....We conclude that this implicit finding is supported by a preponderance of the evidence....The defendant and the victim were not engaged to be married when the incident occurred on December 13, 2007, but they were wed in town hall on January 5, 2008, after Johnson reported the incident to the police but before the arraignment, while the defendant remained a fugitive. The defendant knew that, as a result of the marriage, the victim would be entitled to the spousal privilege, and that the victim intended to exercise the privilege because she did not want her testimony to cause his conviction. Even if the idea to marry originated with the victim, the defendant agreed to marry, and the victim's spousal privilege existed only because of his agreement. In these circumstances, the judge was entitled to infer that the defendant intended to make her unavailable to testify by agreeing to marry her. The judge did not need to find that making her unavailable as a witness was the defendant's sole or primary purpose in marrying her; it is sufficient that it was a purpose in marrying her.

This seems like a strange conclusion to me. It is the doctrine of forfeiture by "wrongdoing." And while the defendant's act of marrying his alleged victim was not criminal, it seems like a strain to deem it wrongdoing. Now, if the court were declaring the marriage a "sham" marriage like a marriage in which one of the parties is just trying to get a Green Card, then maybe that would be wrongdoing sufficient to trigger the doctrine. But it doesn't seem to me that the court was concluding that this was a sham marriage, just a marriage which also allowed the alleged victim to refuse to testify against her new husband.

If the court is correct, though, does that mean that we have seen the end of the classic case of the gangster marrying his moll to prevent her from testifying against him at trial? It might, and I'm not exactly shedding a tear over the defendant in Szerlong not being able to prevent the alleged victim's statements about the scary acts he allegedly committed against her from being admitted into evidence. I'm just not quite sure that this is the type of situation that the forfeiture by wrongdoing doctrine is intended to cover.

-CM

Changing Minds: Eighth Circuit Opinion Reveals That Arkansas Courts Admit Insurance-Related Statements Under Rule 803(3)

Like its federal counterpart, Arkansas Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. 

So, Rule 803(3) does not cover a declarant's statements related to his will, but does it cover a declarant's oral statements related to his insurance policy? According to many courts, the answer is "no." But, as the recent opinion of the Eighth Circuit in Conseco Life Ins. Co. v. Williams, 2010 WL 3447769 (8th Cir. 2010), makes clear, according to Arkansas courts, the answer is "yes."

In Williams,

Conseco Life Insurance Company...issued a life insurance policy...to Niki Williams..., who died following a battle with cancer. Niki's sister, Ellen Buckley, the named beneficiary, and Niki's sons, Eric and Harold Williams (collectively, "appellants"), the prior beneficiaries, both claimed the proceeds of the policy. Conseco interpled the $100,000 insurance proceeds pending the district court's resolution of the dispute. Buckley claimed that she, using a power of attorney, ultimately named herself beneficiary of the policy at Niki's behest. The appellants denied this and claimed that Buckley used undue influence to procure the policy change. Both sides filed cross summary judgment motions. The district court granted Buckley's motion based on witness affidavits, the record, and the holding of Primerica Life Ins. Co. v. Watson, 207 S.W.3d 443 (Ark. 2005). The appellants appeal, arguing that the district court abused its discretion in applying the Primerica hearsay exception to allow certain affidavits to come in as evidence to determine Niki's intent.

Specifically,

According to Buckley, before her death Niki expressed to several people her desire to change the policy beneficiary designation from the appellants to Buckley. In support of her summary judgment motion, Buckley submitted three affidavits-from Robert McGruder, Shelton Pitre, and Thorn-to support Buckley's contention that Niki desired the change in beneficiary.

In most jurisdictions, this evidence would have been inadmissible. As the Eighth Circuit noted,

These three affidavits are undoubtedly parol evidence and therefore hearsay, which is normally excluded under either the Federal Rules of Evidence 801(c) and 802 or the Arkansas Rules of Evidence 801(c) and 802, which match the Federal Rules in substance.

According to the court, though,

this case-decided under Arkansas law-represents an exception to general rule. Some states do require evidence of intent to be in writing if it relates to gifting in contracts, such as the contract in question....Arkansas does not. The Arkansas Supreme Court has interpreted Arkansas Rule of Evidence 803(3) to allow the admission of witness statements that recall hearing a deceased declarant speaking about the deceased's intention to change her insurance policy beneficiary in the future....These statements are an exception to the hearsay rule and the parol evidence is therefore admissible to prove the truth of the matter asserted and can be used to prove the intent of the unavailable, decease declarant.

The case in which the Arkansas Supremes reached this conclusion was the case cited by Buckley: Primerica Life Ins. Co. v. Watson, 207 S.W.3d 443 (Ark. 2005).

-CM

Real Housewife Of New Jersey: NJ Court Denies Motion To Enjoin Marriage To Prevent Application Of Spousal Testimonial Privilege

New Jersey Rule of Evidence 501(2) provides that

The spouse of the accused in a criminal action shall not testify in such action except to prove the fact of marriage unless (a) such spouse consents, or (b) the accused is charged with an offense against the spouse, a child of the accused or of the spouse, or a child to whom the accused or the spouse stands in the place of a parent, or (c) such spouse is complainant.

In Matter of Kozlov, 398 A.2d 882 (N.J. 1979), however, the Supreme Court of New Jersey found that a criminal defendant can "pierce" this spousal testimonial privilege if three conditions are satisfied:

(1) there must be a legitimate need for the evidence; (2) the evidence must be relevant and material to the issue before the court; and (3) "by a fair preponderance of the evidence," the party must show "that the information [cannot] be secured from any less intrusive source."

In its recent opinion in State v. Mauti, 2010 WL 3488654 (N.J.SuperA.D. 2010), the Superior Court of New Jersey, Appellate Division, reviewed a trial court opinion permitting the prosecution to pierce the spousal testimonial privilege. Understandably, the court reversed this ruling.

In Mauti, "Joanne" L. alleged that James Mauti, a physician, her employer, and her older sister's boyfriend, sexually assaulted her. After several unsuccessful attempts to secure the voluntary appearance of the older sister, Jeannette, before the Grand Jury, the State subpoenaed her to appear, and she rendered testimony against Mauti, resulting in him being charged with first degree aggravated sexual assault. Before trial, however, Jeannette and Mauti announced their formal engagement to be married, prompting the State to file an order to show cause seeking to enjoin the marriage until the resolution of the pending criminal charge, but the trial court denied the motion, and the Appellate Division later denied the State's emergent application seeking the reversal of the trial court's ruling and the imposition of temporary restraints on the marriage.

Thereafter, Mauti and Jeannette wed, prompting defense counsel to fax a letter to the prosecutor's office stating that Jeannette was "now the holder of a spousal privilege pursuant to N.J.R.E. 501(2)" and that she was invoking her right not to testify against her husband. The State responded by filing a motion to pierce the spousal testimonial privilege, and the trial court granted it, finding that the State had satisfied the three conditions laid out in Kozlov.

Mauti thereafter appealed, and the Appellate Division correctly found that

Here, the State's application to pierce the spousal testimonial privilege in N.J.R.E. 501(2) does not involve a conflict between a defendant's constitutional right to a fair trial and a statutory right, nor is it grounded in a claim of waiver. The State's application simply seeks to compel defendant's spouse to testify about events she witnessed and actions she took after learning of the alleged assault against her sister.

Nonetheless, the court

recognize[d] the facts presented here create a morally compelling case for finding a means of piercing the spousal privilege in N.J.R.E. 501(2). Jeannette's role went far beyond that of a mere witness to defendant's incriminating behavior. By her own admission, Jeannette removed materially incriminating evidence from the crime scene. She thereafter consciously and affirmatively attempted to destroy or tamper with this evidence, by removing forensic or trace materials that could have empirically corroborated the complaining witness's account of the sexual assault. These acts are more akin to the acts of an accomplice than those of a supportive spouse. Finally, in a twist of irony, Jeannette was not defendant's spouse when she accomplished these acts.

Nonetheless, the court found ultimately found that the spousal testimonial privilege is still an enforceable privilege in New Jersey and that it could not create an exception to allow for the admission of Jeanette's testimony in this case, so it reversed the trial court's ruling.

-CM

You've Got Mail: Court Of Appeals Of North Carolina Implies E-Mail Was Properly Authenticated Under Rule 901(b)(4)

Like its federal counterpart, North Carolina Rule of Evidence 901(a) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

And, like its federal counterpart, North Carolina Rule of Evidence 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.

And, as the recent opinion of the Court of Appeals of North Carolina in State v. Westrom, 2010 WL 3465716 (N.C.App. 2010), implies, parties should be able to authenticate e-mails under Rule 901(b)(4).

In Westrom, the defendant was convicted of violating a domestic violence protection order. The defendant had dated Carrie Lorraine Faber from 2005 to 2007, and, after their relationship ended, Faber was granted a one-year domestic violence protection order ("DVPO") on April 2008, which forbade contact, including the sending of e-mails, between the defendant and Farber. Thereafter, on June 5-6, 2008, Faber received several e-mails that she believed were from defendant:

At trial, the State introduced three e-mails, without objection, alleged to be from defendant. The first e-mail, sent 5 June 2008..., was sent from the address statestreet2513@yahoo.com. The body of the e-mail was blank, but Ms. Faber testified that when she initially opened the e-mail it included a message, signed by defendant, that disappeared after she read it. The other two e-mails, sent 6 June 2008..., were each shown as being sent from Ms. Faber's personal e-mail address and contained a link to an article about mediation.

Ms. Faber testified at trial that she recognized the e-mails as being authored by defendant based on defendant's prior behavior, the sender addresses and the content of the messages....The State also introduced an e-mail, without objection, sent by defendant on 27 February 2008, prior to the effective date of the DVPO....This e-mail was signed by defendant and sent from his personal e-mail address.

After he was convicted, the defendant appealed, claiming, inter alia, that these e-mails were improperly admitted because they were not properly authenticated. The Court of Appeals, disagreed, noting that the defendant had failed to preserve the issue for appellate review and implying that the e-mails were properly authenticated under North Carolina Rule of Evidence 901(b)(4). Such a finding would have been consistent with precedent from other jurisdictions. For instance, in United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000), the Eleventh Circuit found that e-mail was properly authenticated under Rule 901(b)(4) because

a number of factors support[ed] the authenticity of the e-mail. The e-mail sent to Yamada and von Gunten each bore Siddiqui's e-mail address “msiddiquo@jajuar1.usouthal.edu” at the University of South Alabama. This address was the same as the e-mail sent to Siddiqui from Yamada as introduced by Siddiqui's counsel in his deposition cross-examination of Yamada. Von Gunten testified that when he replied to the e-mail apparently sent by Siddiqui, the “reply-function” on von Gunten's e-mail system automatically dialed Siddiqui's e-mail address as the sender.

-CM