WRITTEN BY DR.EVIL
Computer/ Email Evidence in Court
People on the boards need to be aware that nothing they have on their computers is 100% safe including encrypted emails. Anytime you save a document onto your hard drive it leaves a trace. Even if you save over 1000 times or delete it, a computer expert will be able to extract all 1000 saved copies and deleted documents. What’s even more scary is that even deleted emails can be recovered from the servers. Even if you get programs that supposedly wipes out the hard drive or servers completely, old info can still be retrieved.
Now that I’ve succeeded in getting you paranoid, here’s something to consider as well: recovering deleted emails is extremely time consuming and expensive. This is something that is not likely going to be done unless you’re a terrorist or murderer. Most importantly, electronic evidence, especially email evidence have an extremely difficult time making its way into trial because of issues of authenticity and non applicable exceptions to the hearsay rule.
If you got popped, the feds will most likely seize your computer (they’d be stupid if they didn’t). They will also try to get into your emails and dig them up for evidence as well. If you think you have anything on there that is incriminating, relax. It’s not the end of the world. Whatever you do don’t open your mouth to talk to the feds when they ask you anything about what’s on your computer or any other business records.
A lot of attorneys are not very computer savvy and don’t know to challenge the admissibility of computer and email records. The fact is there have been many cases where these records are only discoverable, but not admissible in court. See Aviles v. Mckenzie; Strauss v. Microsoft Corp.; Allen v. State; U.S. v. Kim; Plymouth Police Brotherhood v. Labor Relations Commission; Monotype Corporation PLC v. International Typeface Corporation.
The Supreme Court ruled that all computer-generated evidences are hearsay unless they fall into “hearsay exception” rules. The only applicable exception is if the electronic evidence is a “business record.” This term is very arguable. If you simply had a list of AS on your computer or even prices for them, it may not qualify as business records. This will depend on the ability of your attorney to convince the judge. Email records are certainly not business records. As of 1996 no federal court had applied the business records exception to email messages.
Striking out email based on the hearsay rule is very good strategy, but the best may be to challenge its authenticity. Even if you had dealt with an undercover agent over email and fell victim to a controlled buy, it still may not be enough to even get into evidence, let alone convict you. First the feds need to prove that what they received from your house did in fact come from YOU. Next they’d need to prove that the person they talked to over email to secure the deal was in fact YOU and no one else. If you did not take the proper precautions it will probably be too late to disprove that you actually were the one who shipped the package, but if they don’t have your fingerprints or handwriting on the package or the contents inside the package then they can’t prove you’re the one who sent the package. Next comes the part of email authenticity. Let’s say your email addy is [email protected] and everyone knows it’s [email protected] doesn’t mean it’s actually you. If an agent communicates w/ [email protected] for a controlled buy, it could very well have been a hacker trying to mess with you. I just learned the other day that you don’t even have to hack into someone’s email addy to compose messages from it. There are software programs that lets you compose an email from ANY addy you want and it looks 100% like the real thing. Even I-P addresses can be faked. On top of that, if evidence comes from deleted emails that were retrieved, these are often in broken fragments and very difficutl to read and decipher. All this becomes a huge problem for prosecutors when they try to admit emails as evidence and they often fail when challenged, but too many times, the defense doesn’t even know to fight it. If you have a good computer expert to testify, the judge will NOT allow this evidence into trial.
All this is for naught if you open your mouth when questioned by the feds. Don’t say a word. They will threaten you like there’s no tomorrow, but shut your trap! Let them do their investigation and try to dig up dirt on you, but don’t do their job for them. If you get into this business then you better know ALL of your rights if you get popped. A little bit of investigative work now can save you a lot of trouble later.
Computer/ Email Evidence in Court
People on the boards need to be aware that nothing they have on their computers is 100% safe including encrypted emails. Anytime you save a document onto your hard drive it leaves a trace. Even if you save over 1000 times or delete it, a computer expert will be able to extract all 1000 saved copies and deleted documents. What’s even more scary is that even deleted emails can be recovered from the servers. Even if you get programs that supposedly wipes out the hard drive or servers completely, old info can still be retrieved.
Now that I’ve succeeded in getting you paranoid, here’s something to consider as well: recovering deleted emails is extremely time consuming and expensive. This is something that is not likely going to be done unless you’re a terrorist or murderer. Most importantly, electronic evidence, especially email evidence have an extremely difficult time making its way into trial because of issues of authenticity and non applicable exceptions to the hearsay rule.
If you got popped, the feds will most likely seize your computer (they’d be stupid if they didn’t). They will also try to get into your emails and dig them up for evidence as well. If you think you have anything on there that is incriminating, relax. It’s not the end of the world. Whatever you do don’t open your mouth to talk to the feds when they ask you anything about what’s on your computer or any other business records.
A lot of attorneys are not very computer savvy and don’t know to challenge the admissibility of computer and email records. The fact is there have been many cases where these records are only discoverable, but not admissible in court. See Aviles v. Mckenzie; Strauss v. Microsoft Corp.; Allen v. State; U.S. v. Kim; Plymouth Police Brotherhood v. Labor Relations Commission; Monotype Corporation PLC v. International Typeface Corporation.
The Supreme Court ruled that all computer-generated evidences are hearsay unless they fall into “hearsay exception” rules. The only applicable exception is if the electronic evidence is a “business record.” This term is very arguable. If you simply had a list of AS on your computer or even prices for them, it may not qualify as business records. This will depend on the ability of your attorney to convince the judge. Email records are certainly not business records. As of 1996 no federal court had applied the business records exception to email messages.
Striking out email based on the hearsay rule is very good strategy, but the best may be to challenge its authenticity. Even if you had dealt with an undercover agent over email and fell victim to a controlled buy, it still may not be enough to even get into evidence, let alone convict you. First the feds need to prove that what they received from your house did in fact come from YOU. Next they’d need to prove that the person they talked to over email to secure the deal was in fact YOU and no one else. If you did not take the proper precautions it will probably be too late to disprove that you actually were the one who shipped the package, but if they don’t have your fingerprints or handwriting on the package or the contents inside the package then they can’t prove you’re the one who sent the package. Next comes the part of email authenticity. Let’s say your email addy is [email protected] and everyone knows it’s [email protected] doesn’t mean it’s actually you. If an agent communicates w/ [email protected] for a controlled buy, it could very well have been a hacker trying to mess with you. I just learned the other day that you don’t even have to hack into someone’s email addy to compose messages from it. There are software programs that lets you compose an email from ANY addy you want and it looks 100% like the real thing. Even I-P addresses can be faked. On top of that, if evidence comes from deleted emails that were retrieved, these are often in broken fragments and very difficutl to read and decipher. All this becomes a huge problem for prosecutors when they try to admit emails as evidence and they often fail when challenged, but too many times, the defense doesn’t even know to fight it. If you have a good computer expert to testify, the judge will NOT allow this evidence into trial.
All this is for naught if you open your mouth when questioned by the feds. Don’t say a word. They will threaten you like there’s no tomorrow, but shut your trap! Let them do their investigation and try to dig up dirt on you, but don’t do their job for them. If you get into this business then you better know ALL of your rights if you get popped. A little bit of investigative work now can save you a lot of trouble later.
