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 [email protected]. 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 “[email protected]” 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