Email As Evidence Controversy

Evidence in the Bonusgate/Corruption investigation is under attack by the defendants. Specifically, the defendants are trying to have emails retrieved by the AG's office from Commonwealth computers excluded on the grounds they cannot be authenticated or the defendant's atttorneys did not have access to the hard drives where the emails were retrieved.

On the surface that argument may have some merit. It probably is the reason a judge has been wrestling with the issue for months.

This court case highlights some important points in AG Corbett's favor.

The defendant argues that the trustworthiness of these e-mails cannot be
demonstrated, particularly those e-mails that are embedded within e-mails as having been forwarded to or by others or as the previous e-mail to which a reply was sent. The Court rejects this as an argument against authentication of the e-mails. The defendant’s argument is more
appropriately directed to the weight the jury should give the evidence, not to its authenticity.

While the defendant is correct that earlier e-mails that are included in a chain – either as ones that have been forwarded or to which another has replied – may be altered, this trait is not specific to e-mail evidence. It can be true of any piece of documentary evidence, such as a letter, a contract or an invoice. Indeed, fraud trials frequently center on altered paper documentation, which, through the use of techniques such as photocopies, white-out, or wholesale forgery, easily can be altered. The possibility of alteration does not and cannot be the basis for excluding e-mails as unidentified or unauthenticated as a matter of course, any more than it can be the rationale for excluding paper documents (and copies of those documents). We live in an age of technology and computer use where e-mail communication now is a normal and frequent act for the majority of this nation’s population, and is of particular importance in the professional world. The defendant is free to raise this issue with the jury and put on evidence that e-mails are capable of being altered before they are passed on. Absent specific evidence showing alteration,
however, the Court will not exclude any embedded e-mails because of the mere possibility that it can be done.