PA Superior Court: Forwarded Emails May Qualify as Duplicates for Best Evidence Rule
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Fischer, holding that the trial court properly admitted forwarded emails as duplicates under the best evidence rule even though forwarded emails can easily be tampered with or forged. The Court held that the best evidence rule did not prohibit the admission of the emails.
The Facts of the Case
The defendant and the complainant, his ex-fiancée, were involved in a ten-year relationship that ended prior to August 2020. They shared a child, who was two years old at the time of the events in question. Between August and September 2020, the defendant allegedly engaged in repeated communications directed toward the complainant. The communications involved making phone calls to the complainant, sending text messages and emails, and making social media posts tagging the complainant. On one occasion, the defendant made 100 calls to the complainant in a single day, which seems excessive.
The communications included threats and manipulative language. For example, one email stated: “If you don’t ensure our daughter is reunited with me this evening, your life will change forever tomorrow, as will your mother’s. Tread carefully. You’re being watched.”
At trial, the Commonwealth relied on forwarded emails from the complainant. The complainant had forwarded the emails from one account to another and then printed out the emails and given them to the police. The prosecution introduced them into evidence as evidence of the defendant’s harassing conduct.
The Commonwealth charged the defendant with three counts of harassment and one count of stalking. A jury convicted him of two harassment charges but acquitted him of stalking and one of the three harassments counts. The trial court sentenced the defendant to two years of probation with restrictive conditions. The defendant appealed, arguing that the trial court erred in admitting the forwarded emails because they should not have been admissible under the Best Evidence Rule.
The Superior Court Appeal
The defendant argued that the forwarded emails were not admissible for three reasons.
They were not “originals” or “duplicates” under the Pennsylvania Rules of Evidence.
The forwarding process allowed for potential manipulation of the content.
Omitted portions of the email correspondence removed necessary context from the evidence.
The trial court overruled these objections, admitting the emails as “duplicates” under Pennsylvania Rule of Evidence 1001(e), which defines a duplicate as a copy produced through an electronic or other reliable process that accurately reproduces the original.
The Superior Court affirmed the trial court’s decision, holding that the forwarded emails were properly admitted as duplicates. The Court’s reasoning was based on the following:
Duplicate Status: The Court determined that the forwarded emails met the definition of duplicates because they were created through an electronic process that accurately reproduced the original content, including the sender’s and recipient’s email addresses, timestamps, and subject lines. The forwarded emails contained more detailed metadata than the screenshots at issue in Commonwealth v. Talley, a leading case on the Best Evidence Rule.
Authenticity: The defendant failed to raise specific challenges to the authenticity of the emails. The complainant authenticated the forwarded emails through her testimony, testifying that they were identical to the messages she received from the defendant. Thus, this claim was waived, and it would have been rejected anyway because the complainant could authenticate the emails as the emails that she received.
Fairness: The Court rejected the defendant’s argument that the forwarded emails were unfairly admitted because other communications were omitted. The Court noted that the defense could have addressed these omissions through cross-examination or by introducing additional evidence.
Precedent: The Court relied on the Pennsylvania Supreme Court’s decision in Talley, which held that screenshots of text messages are admissible as duplicates under the Best Evidence Rule if created through a reliable process and authenticated at trial.
Ultimately, the Superior Court held that the forwarded-and-then-printed emails were duplicates of the originals and that forwarding an email and then printing it was basically the same thing as screenshooting it. In Talley, the Supreme Court ruled that screenshots of text messages were admissible as duplicates.
The problem is that screenshotting in fact creates a duplicate, whereas a forwarded email is not the exact same thing as the original email. It is easy for someone to change the text in the forwarded email, and one of the judges issued a concurrence suggesting that she would not have allowed for the admission of the emails because the risk of manipulation was too high.
In this case, however, the Court ruled that the emails were properly admitted and that any challenge to whether they were real should be decided by the fact-finder rather than as a challenge to their admissibility. The defense was free to cross-examine the complainant on the fact that she did not have the original emails available and then argue that they were fake. The problem with this analysis is that judges and juries are often too quick to rely on electronic evidence like text messages and emails that looks real even when it is not. It takes only a matter of seconds to edit or forge a text message or email, and unless someone is particularly savvy with technology, they may not realize just how easy it is to forge this type of evidence. Further, it is usually not particularly difficult to obtain actual records from the service provider to show that the screenshots or forwarded messages are real. Unfortunately, the courts have generally rejected the idea that the prosecution should have to obtain solid proof that the images are real, instead shifting the burden to the defense to prove that they are fake. Hopefully, the defendant will seek further review in this case. The appellate courts may also begin to reevaluate the low standard for the admissibility of electronic evidence as it becomes clearer that this type of evidence can be fabricated in a matter of seconds.
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Goldstein Mehta LLC Criminal Defense Attorneys
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
