Sometimes at trial, the only way to get certain facts or statements into evidence is through the emails that contain them. But this situation occurs infrequently enough that most of us don’t know off-hand how to go about authenticating emails for use as admissible evidence. Fortunately, a path has been paved for this in Alabama that makes it clear how we need to authenticate emails.

Authentication under Alabama Rule of Evidence 901

Alabama Rule of Evidence 901 provides the requirements for authenticating evidence. The purpose of authentication is to enable the court to be “satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Ala. R. Evid. 901(a). That’s where 901(b) steps in with ten illustrations about how authentication can be accomplished.

Appellate courts in Alabama have stepped in to hold that 901(b)(4), “Distinctive characteristics and the like,” is the most appropriate of the ten illustrations in Alabama Rule of Evidence 901 to address authenticating emails.

Criteria for Authenticating Emails

In Culp v. State, the Alabama Court of Criminal Appeals used Alabama’s Rule of Evidence 901(b)(4) to provide the method by which email can be authenticated, by “[d]istinctive characteristics and the like,” including “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” Culp v. State, 178 So. 3d 378, 386 (Ala.Crim.App. 2014). Specifically, it held that the subject emails were properly authenticated and admitted because (1) a witness testified that the defendant had sent the email and that she had helped him set up the account from which the emails had been sent; (2) each email from the defendant’s account contained personal identifiers, including his photograph and screen name; (3) many of the emails were concluded with the defendant’s initials; and (4) many of the emails contained references to other items of evidence. Id. at 386-87.

The Alabama Court of Civil Appeals adopted the same method of authenticating email in Smith v. Smith, 196 So. 3d 1191, 1196 (Ala. Civ. App. 2015).

This application of Alabama Rule of Evidence 901(b)(4) comports withe the intent of the rule as described in the advisory committee notes:

A document, chattel, conversation, or other evidence may possess characteristics so distinctive that, when considered in light of the circumstances, they may support a finding that the item in question is what its proponent claims it is. A document or a telephone conversation, for example, may be authenticated as emanating from a particular person by its disclosing facts within the peculiar knowledge of the communicating person. Similarly, the content and circumstances of a letter may be sufficient to authenticate it as a reply to another authenticated letter.

The next time you’re preparing for trial and have evidence that can only be admitted through email, you can rest easier knowing that the rules and courts have outlined specifically what is necessary for you to succeed in doing so. The rest is up to you.

---

Photo by Al Abut.