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Another example is The Florida Bar v. Mogil,6 in which Mr. Mogil was removed from judicial office in New York for (among other things) sending to a criminal defense attorney multiple anonymous communications that were harassing, threatening, and otherwise offensive, and repeatedly displaying a lack of candor and making both misleading and patently false statements in connection with the judicial investigation of his conduct. Also at issue was an offensive email that was sent to the President of the United States. The email was allegedly sent from Mr. Mogil’s computer. Mr. Mogil denied sending the email. The court found that the following evidence was sufficient to authenticate an email message: (1) the email was received when the defendant’s personal account was in use, (2) the account was only accessible by password, (3) the password was not shared with anyone other than the defendant’s secretary, and (4) under such circumstances there was little likelihood that anyone other than the defendant

sent the message.

Circumstantial evidence was important in United States v. Siddiqui.7

The Eleventh Circuit

considered that an email bore Mr. Siddiqui’s email address at the University of South Alabama. The court found the email to be authentic based upon its appearance, contents, substance, internal patterns and other distinctive characteristics taken in conjunction with the circumstances.8 The court concluded that the circumstances and distinctive characteristics were sufficient to meet

the authentication requirement. An email bearing Siddiqui’s school email address was sent to

two friends.

One of the friends testified that when he replied to the email sent by Siddiqui, it

automatically dialed Siddiqui’s email address.

The email received by his two friends referred to

Siddiqui’s nickname, and both friends testified that they had a conversation with Siddiqui that included the same issues addressed in the email.

B. Hearsay

Similarly, courts are permitting a witness who may not be familiar with documents in evidence to lay the foundation for the “business records” exception to the hearsay rule. Traditionally, this foundation had to be laid by a witness with knowledge of how the records were kept in the ordinary course of business. To satisfy this requirement, either the supplier of the recorded information must have had personal knowledge of that information, or an employee of the business must have verified the information. The foundation for admissibility from an authenticating witness proffering a business record does not require the witness to have personal knowledge of the actual events reflected in the business record. A number of courts, however, have admitted business records even when an anonymous person supplied the information in the record. 9 Other courts have relied on circumstantial evidence as to whether a record of the type at issue for a business of the type in question is likely to be maintained with accuracy.

“Business records that are generated by computers present structural questions of reliability that transcend the reliability of underlying information that is entered into the computer.”10 Computer machinery may make errors due to the malfunctioning of hardware, and computers may make errors due to defects in software.11 In view of the complexity inherent in the “operation of computers . . . courts have been cautioned to take special care to be certain the foundation is sufficient to warrant a finding of trustworthiness and that the opposing party has full opportunity to inquire into the process by which information is fed into the computer.”12 Despite the words of caution, courts have been willing to relax the foundational requirements to admit

business records.

For example, the court in United States v. Whitaker13

considered circumstantial evidence

when determining whether to admit a document. In Whitaker, the defendant used computer records to keep track of illegal drug transactions. The defendant was shown the records and his method of keeping track of drug transactions with other co-defendants. An FBI agent obtained a printout of business records from the suspect’s computer by simply turning on the computer, installing Microsoft Money and printing the records. The FBI agent testified at trial as to the seizure of the records. Defense counsel did not ask the FBI agent any questions of a technical nature. The court affirmed the admission of the printouts, finding that the testimony of the FBI agent, with personal knowledge of the process used to retrieve the information and his personal

Morgan, Lewis & Bockius LLP

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