Electronic Evidence

Given the prevalence of computers in our everyday lives, evidence in criminal cases often comes from electronic communications involving defendants. Under what circumstances are text messages, e-mails, or other social media communications admissible against defendants in criminal trials? Massachusetts appellate courts have been considering these issues over the past decade and have established a protocol for trial judges to follow in determining whether to admit electronic communications allegedly authored by defendants.

The lead case involving the proper admission of electronic evidence in Massachusetts is Commonwealth v. Purdy, which was decided by the Supreme Judicial Court in 2011. The case was prosecuted by former Spring & Spring partner Meghan Spring when she was working as an assistant district attorney in Middlesex County. The defendant was the owner of a massage parlor in Cambridge. For extra fees, patrons receiving massages could obtain sexual favors from the masseuses. Police officers conducted an undercover sting at the parlor and confirmed the sexual activity. A search warrant was obtained and the police seized the defendant’s computer. The defendant acknowledged ownership of the computer and provided the cops with passwords necessary to access certain files. At trial, the Commonwealth introduced 10 e-mail messages taken from the computer in which the defendant made damaging admissions. Following his conviction for deriving support from the earnings of a prostitute, the defendant appealed and argued his e-mails had not been properly authenticated and should not have been shown to the jury (the defendant testified at trial and denied writing the e-mails, suggesting his coworkers must have authored them as a prank).

The Supreme Judicial Court upheld the defendant’s conviction and ruled the e-mails were properly authenticated and admitted at trial. The Court said it is not sufficient for e-mails to simply bear the defendant’s name – there must be confirming circumstances to allow a reasonable jury to conclude by a preponderance of the evidence (more likely than not) that the defendant was the author. In the Purdy case, the confirming circumstances were: the defendant’s admitted ownership of the computer from which the e-mails were taken; the defendant’s photograph that was attached to one of the e-mails; and specific personal information contained in the e-mails about the defendant.

Since Purdy was decided, Massachusetts appellate courts have found confirming circumstances in the following situations:

  • A message made reference to shared children between the defendant and the victim;
  • A message included a photograph of the defendant that would only be available to him;
  • A message included slang that was used regularly by the defendant and was unique to him;
  • A message referred to the victim by using the defendant’s private nickname for her;
  • A message referred to a previous private conversation between the defendant and the victim; and
  • The e-mail originated from a computer that had an IP address traceable to the defendant.

When a prosecutor seeks to admit e-mails (or other electronic media evidence, such as Facebook posts) allegedly written by a criminal defendant, the judge is required to hold a hearing to determine whether there are confirming circumstances to allow for their admission. If the judge concludes that a reasonable jury could find by a preponderance of the evidence that the defendant wrote the communications, they are then presented to the jury. Of course, the jurors are not required to accept that the defendant was the author, and the defendant can always present evidence that his accounts were hacked (or there is an alternative explanation for the creation of the messages).

A prosecutor’s introduction of electronic evidence is often devastating to a criminal defendant’s case. Anyone who is charged with a crime involving e-mails, text messages, or other social media communications should immediately consult with an experienced criminal defense attorney to explore his options.

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