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Admissibility of emails into evidence

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amenlove

Guest
What is the name of your state? Michigan

I need to know whether I can admit emails between the Defendant (in a change of domicile case) and a third party (man she's having an affair with overseas) in a trial I am currently engaged in. I represent Plaintiff husband. I need them as a rebuttal to statements made in Defendant's brief.
Am concerned about hearsay rule. I consider the statements made in the emails as admissions, or showing "state of mind", etc., but still don't know if I can present them into evidence.
 
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A

amenlove

Guest
I just edited my question, but basically, it's whether I can admit into evidence in a trial (currently in progress) certain emails the Plaintiff husband found on the computer (belongs to both parties), the content of which rebuts many statements made in the Defendant's brief. The issue in the case is change of domicile of two small children to overseas (England) and the resultant custody of the two children. The emails are between the Defendant Wife and a friend, and between her and her lover. I would like to use it as rebuttal to her statements.
 

stealth2

Under the Radar Member
Only the judge can rule whether they're admitted into evidence. How is it, if you're representing someone, you don't know this?
 
A

amenlove

Guest
I'm a lawyer, but I rarely do trials and I truly believed this would settle. In the trials I have done, nothing like this has come up before. The evidence issues have been simple and I could find the answers just by reading the rules of evidence or my family law books. I don't subscribe to Westlaw or Lexis-Nexis anymore since I am a sole practitioner and couldn't afford it. I came across this site this morning and just thought I'd see if someone could give me a head start before I hit the law books, etc.
 

stealth2

Under the Radar Member
I have to say this, and I'm not a lawyer. But if my attorney had to go to an internet site for such a basic question, I'd be looking for new representation ASAP. Family law is no place to be f*cking around. This is basic evidenciary law, and even a neophyte such as myself knows that. You are doing your client a disservice.
 

I AM ALWAYS LIABLE

Senior Member
My response:

You'll have to forgive my good friend Stealth. Apparently, Stealth sees a difference between cracking open a law book to research a point of law, and using the Internet for the same purpose. I don't. Even the best of attorneys, including myself, need to open law books, and treatises, and many other sources of primary and secondary laws, in order to find answers. This is especially true when laws change on a daily basis.

I can only tell you about California law, and how other jurisdictions treat e-mail evidence:

"Documentary evidence may be authenticated through circumstantial evidence, including the document's own distinctive characteristics and the circumstances surrounding its discovery. [United States v. Siddiqui (11th Cir. 2000) 235 F.3d 1318, 1322--e-mail authenticated through contents, use of author's nickname and its address; United States v. Bagaric (2nd Cir. 1983) 706 F.2d 42, 67--letter authenticated based on contents and location where it was found]"

Good luck.

IAAL
 

stealth2

Under the Radar Member
I am always happy to be proven wrong if it helps someone. I'd still be looking for a new attorney, tho. I pay mine too much to find him/her here. (nothing personal!)
 

I AM ALWAYS LIABLE

Senior Member
stealth2 said:
I am always happy to be proven wrong if it helps someone. I'd still be looking for a new attorney, tho. I pay mine too much to find him/her here. (nothing personal!)

My response:

Why? Angelove didn't know the "ilk" of this site and, for all s/he knew, this would be a good place for research. And, as far as I'm concerned, with my above answer to our writer, it is.

Like I said, when I do research on an issue, you'd be surprised where I sometimes find my answers - - and baby, I've been practicing for over 24 years. And, in that time, I've learned to use every practical resource I can find in order to win a case.

There's nothing wrong with using FreeAdvice, or the Internet in general.

IAAL
 
A

amenlove

Guest
Thank you for all the responses. I'd like to reassure everyone that I did indeed do the "real" research concerning the admissibility of the e-mail evidence. I found a New Jersey case exactly on point, including issues of privacy, levels of hearsay, wire-tapping, etc., However, I haven't found a Michigan case yet and am going to the library this morning. As for the jibes, well, I'm sorry if I sounded incompetent. Actually, I graduated in the top 5% of my class, had a 4.0 in undergrad and a 4.0 in grad school (clinical psych), and was on law review. We also have a local "list-serve" in which all our local lawyers ask each other these kinds of questions all the time, in the hope of getting shortcuts. Why try to re-invent the wheel when someone else may already know the answer and save you and your client many hours of time. Thank you to those who were understanding. I truly appreciate your help and would be happy to reciprocate when possible.
 

stealth2

Under the Radar Member
I apologize for the jibes, and would clarify a little. Professional listserves certainly have a place, and I wouldn't have any problem with my attorney using them. But knowing boards like this, it would disturb me if she was getting her info here. And that's just me - sorry I came down so hard.
 

rmet4nzkx

Senior Member
I am not an attorney although I worked in the field of forensics as an expert witness, dealing with facts and evidence and therefore don't "practice" law, lol! Go join findlaw.com you can do a lot of research there and almost anything else on the net, although you may have to pay for some of it, in most cases there is an option of a one day or document fee which may be far less than the time and effort going to the library to research it.
Here is a Daubert link & forum for asking questions: http://www.daubertontheweb.com/
and on electronic discovery: http://www.law.com/special/supplement/e_discovery/
http://www.discoveryresources.org/

Here are 2 related sites with information re international child custody:
International Parental Child Abduction About the State Dept. International Parental Child Abduction. May 2004 http://travel.state.gov/abduct.html go to the section on United KIngdom for specific information and addressess, remember you are now dealing with more than state law.

The Office of Children's Issues US Department of State Washington, DC Office of Children's Issues handles only international parental child abduction and international http://travel.state.gov/children's_issues.html
Both sites have links to other sources including legal so you may find something there.

Insofar as emails as evidence, I would suggest that since the computer was jointly owned and that there wasn't password protection, privacy laws may not apply, however the internet is interstate and covered by U.S.C. as well as state law. You might want to have a qualified "forensic" download of the computer's "cache" by a Certified Forensic Computer Examiner, that is if there is access to the computer and it's cache has not already been erased, that should remove all question as to admissability. Here is a link to Experts, 3 of which are in Michigan:
Michigan Computer Evidence Discovery Expert Witnesses
http://expertpages.com/experts.php/computer_evidence_discovery_michigan.htm

Otherwise, you will have to authenticate the data if it is stored on disc and/or printed out, because of course these could be changed, but again, the stored disc can be examined for dates etc. Also if the emails were stored on a secure server, that is a possibility as well. Ca. EC 623 covers Estoppel I don't know about Michigan Rules of Court?

I recently was involved in a case where my own emails were in quesiton, they brought into court as paper copies, many months old, waved around, they had intentionally not submitted them as evidence and claimed they said something they did not, needless to say, this was hearsay and not authenticated, but can still leave an impression. Luckily I have both hard copies and the emails are stored on a secure server to prove what they said when I sent them.

UPDATE: DISCOVERY AND ADMISSIBILITY OF ELECTRONIC EVIDENCE
White v. White, 344 N.J. Super. 211, 781 A.2d 85 Ch. Div. 2001. The wife in White sought to use certain emails retrieved off of the family computer as evidence in a custody case. The husband argued that admission of the documents violated New Jerseys state wiretap act, plus an alleged common-law ....
It is better to recognize you don't know everything and do something about it rather than to not know, not adimt or do something about it.
Take Care I hope this helps.
 
A

amenlove

Guest
Thanks again to all, and most recently to rmet4nzkx. I am familiar with the White v White case and love the analysis. I'm going to the UofM law library this afternoon to try and find a Michigan case. I had thought this forum was all lawyers actually when I first posted my question. It has proven to be very helpful though many are not lawyers.
 

I AM ALWAYS LIABLE

Senior Member
amenlove said:
I had thought this forum was all lawyers actually when I first posted my question. It has proven to be very helpful though many are not lawyers.

My response:

Actually, I am.

Also, this site is low on carbohydrates and saturated fats, too!

IAAL
 

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