Tuesday, 10 January 2017

Are emails admissible in court? How do you suppress the evidence?

Technology acts as a double-edged sword. Its merits and demerits completely depend on the hands that are holding this sword. This has made us to think how much we should trust electronic communication medium. “Emails”- the primary element of electronic communication, have acted as catalyst in crime field also. The answer for the question raised in this article is positive with some conditions applied. Of course emails have been submitted as evidences in past also and if authentic they have been considered as legal evidences. But, as compared to other evidences, the reliability or authenticity of e-mail evidence is subjected to scrutiny.

Foundation of Making Email Admissible:

Hearsay Issue: The very first condition is hearsay problem. Hearsay rules can be different for different countries and their law suits. But in general this is a rule or testimony where email or documents, quoting certain person not in court, is not admissible in court and it cannot be considered as substantial evidence. But it does have exceptions and there is slight line between these exceptional. By legal definition hearsay is an out-of-court statement and hence it needs strong authentic reasons to prove that it is not “offered in evidence to prove the matter asserted”.

Authentication: When you submit e-mail evidence in the court, it is not necessary that it will be considered as authentic. It must be clarified with strong reasons and proofs that the email has come from the location or person where it is showing it has come from. The emails or documents you are submitting must be admissible under the law. This will admit your email evidences as direct evidence and also overcome the hearsay issues. It is most important to gain correct information about sender and receiver information along with IP address. And it is equally important that the technique you are using should come from reliable resource.

Suppression of Evidence:

Competency and relevance are key aspects of any evidence. And to maintain this, evidence must be handled through legitimate means only. However, in many cases suppression of evidence is done by the court and if your email evidence is not backed up by a strong and reliable resource or has not been complied by good practice it can be suppressed. Term suppression of evidence illustrates that a criminal defendant is trying to suppress your email evidence by saying that it was obtained or manipulated by illegal means by investigators or by the police itself. If your defense party is using email evidences against you then you too can use it in legal proceeding is an as a step for criminal defense. In many conditions like improper or illegal search of evidences, chain of custody errors, etc. evidences are suppressed and are taken as irrational.

How to Take Right Steps with E-mail Evidences?

Enhancement of reliability of emails as an evidence along with proper choice of resources to handle these evidences is the first step. To maintain integrity of evidences, you must collect it very carefully. In addition to this, you must be able to proof that the email was created, compiled and stored with good practice without performing any manipulation with its content. To do this, many investigators trust on reliable software tools like Encase, email recovery tools, hard-disk replicators, etc. Coming from reputed brands, these tools make the email admissible in court. One must rely on such trustworthy products only so that potential evidences are acquired. Law enforcement officers engaged with such cases must be trained to learn new technological devices.

Bottom Line:

The admissibility of evidences as an email also depends on the way it has been stored. Precautions must be taken so as to maintain integrity of email evidences.  Mere having evidences is not enough; it must be strong and admissible in the court. Various factors affect the chances of evidences being admissible or not. Addressing and resolving these issues using proper guidance at the earliest possible phase is important. 


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