I don’t write about criminal cases on this blog for a reason: I know nothing about them. But Donati v. State is a criminal case that teaches us a lesson in how to get an email into evidence at trial. In medical malpractice and product liability cases, this is something you often need to be able to do.
The Facts of Donati v. State
If I’m going to have to read a criminal case, I want some wacked out facts. This case delivers.
The Defendant developed a grudge against a particular bar and bar owner after he was forcibly removed from the premises. Over the course of the next few months, he exchanged various threatening emails with the bar owner and his staff from a variety of different email addresses.
The Defendant, not content to stop there, also began sending emails to the Montgomery County Police Department alerting them to “narcotics activity” at the bar. It is worth mentioning, I guess, that the police never found any evidence of this alleged narcotics activity but who knows how hard they looked. The emails to the police department were also sent from a number of different email addresses. [Memo to self: create phony email addresses to send hate mail to anyone who posts a nasty comment on this blog.]
As the tips continued to prove fruitless, and the emails became increasingly bizarre, the police became suspicious and eventually made the connection that these emails were likely being written by the same person. Following up on these and other marijuana-related suspicions – which I have no idea how they got – the police arrested the Defendant. At his home, police found dozens of email addresses written on sheets of paper, many of which matched the email addresses used to communicate false information to the police and threats to the bar owner. That’s hard evidence to run from, right?
He was convicted of numerous marijuana-related offenses as well as fifteen counts of email harassment and the providing of false statements. He appealed his conviction on the basis of, among other things, the trial court’s failure to properly authenticate the emails he sent back and forth with the police. In denying his appeal, the Maryland Court of Special Appeals dealt for the first time with the proper means of authenticating an email document for admission in court.
Email Authentication Issue
The prosecution’s problem was a real one. How do you get the emails authenticated? The Defendant claimed that the prosecution did not do what it had to do to allow the jury to consider, and convict in this case, the emails.
There are many paths to authenticate e-mails. It can be as easy as getting the witness who received the email to testify that the printed email was received. Emails also usually show the source so authentication can be done just like U.S. Mail can be authenticated. There are is also the business record exception. So, on its face, this is not a big deal.
But the problem is emails are so easy to fake, right? Unlike medical records, email authentication is a real thing because they can be tampered with so easily. The Maryland Court of Appeals has underscored this concern, warning that trial judges should be especially wary of admitting evidence of modern means of communication and social media, which may be readily fabricated. Some think our courts have set the bar a little too high in this regard.
Maryland Rule 5-901(a) outlines the general rule concerning authentication. “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.” Ultimately, authentication serves the purpose of “requiring the presentation of evidence sufficient to show that the evidence sought to be admitted is genuine.”
The Court’s Ruling
In addressing this issue, the court cited cases in which it dealt with the proper procedure for authentication of text messages but admitted a lack of precedent on the issue of authenticating email communications. The court started from the premise that the list of methods in Maryland Rule 9-501(b), which controls authentication of documents, is not exhaustive and therefore methods not listed may be appropriate for use in authenticating email. The court cited to Lorraine v. Markel Am. Ins. Co., a Maryland federal case, for the proposition that e-mail messages may be authenticated by either (1) direct evidence or (2) circumstantial evidence.
Authentication By Direct Evidence
An e-mail could be authenticated by direct evidence alone if its author or proponent testifies to producing the contents of the email. An e-mail may also be authenticated by direct evidence when someone with personal knowledge of the email, such as someone who helped write or edit it, attests to its authenticity. Authentication by direct evidence is conclusive in itself, but sometimes it is only possible to establish the authenticity of one side of the communication.
In the case of Mr. Donati, the police officers were each able to attest to the authenticity of their own responses to Mr. Donati’s e-mails, but nobody could directly attest to the authenticity of the e-mails allegedly written by Mr. Donati, especially since Mr. Donati denied he was their author. That’s the problem here, right? The authenticity of Mr. Donati’s side of the communication, which was obviously essential to upholding his conviction for e-mail harassment, could only be established through circumstantial evidence.
Authentication By Circumstantial Evidence
When direct evidence is unavailable to establish the authenticity of an email, circumstantial evidence may be used. Examples of circumstantial evidence that may be used by the court in authenticating emails include the sender’s IP address, the contents of the e-mail (i.e. do they contain information that only the alleged sender would possess?), the use of names or nicknames, and any other identifying factors that could link an e-mail address to a certain person as its sender or author.
The piece of circumstantial evidence that doomed the Defendant and authenticated the e-mails as being written by him was the paper found in his house with the various email addresses recorded on it, some of which were used to communicate lies to the police and threats to the bar owner. When coupled with the fact that the e-mails all covered the same subject matter, were written in the same tone, written during the same time period, and the fact that Mr. Donati often followed up his e-mails with phone calls, all circumstantially authenticated the e-mails in the eyes of the court as being authored by Mr. Donati. Combined with the direct evidence provided by the police officers as to the authenticity of their half of the electronic communications, the court found sufficient grounds to uphold the authentication of the e-mails by the trial court.
Other Issues of Note
I could not work these into the post, but here are some more nuggets from this case.
- Prior to the 2012 amendment to Maryland Rule 3-805 (the e-mail harassment statute), each e-mail sent was the unit of prosecution used in charging the defendant. Since that amendment, each course of conduct (or series of related emails) is now the unit of prosecution under Rule 3-805. Criminal lawyers understand what I’m saying here but I really don’t.
- The court reiterated the 5 step approach set forth by the U.S. Supreme Court in Neil v. Biggers 409 U.S. 188, 189 (1972) for determining reliability of in-court voice identification: (1) the ability of the witness to hear the assailant speak, (2) the witness’ degree of attention, (3) the accuracy of any prior identifications the witness made, (4) the period of time between the incident and the identification, and (5) how certain the witness was in making the identification.
- The court also reiterated the wide latitude which counsel has in performing closing arguments, while still emphasizing the fact that counsel is not permitted to comment upon facts, not in the evidence or invite the jury to do so.
One other point that I think is critical. If you are trying to admit emails in a civil case and you are worried it might be an issue, send requests for admission for authentication. If you wait until trial and there are complications, you are just asking for trouble.