Forensic study of authenticity of e-mails

Nowadays, technology is very present in our lives, so that more and more, computer-based evidence is part of everyday life in the judicial field. One of the most common cases is the accreditation or challenge of facts through e-mails, in which it is sought to determine the origin, authenticity and integrity of the same.

It is very common, to commit the temerity, to present an e-mail printed on paper as evidence in a judicial proceeding. In this case, the evidence is rebuttable since e-mails, given their nature, may be manipulated, and their mere printed presentation is not enough to prove their origin, authenticity and integrity.

As it is indicated in the Supreme Court Judgment 300/2015, May 19^th , 2015 the proof of facts by means of e-mail “… is approached with all caution by the courts of justice. The challenge of the same displaces the burden of proof on those who intend to take advantage of their probative suitability. In such a case, the practice of an expert evidence will be essential … “.

Some interesting judgements

• Judgment of the Provincial Court of Madrid 292/2020, Section 1, September 29^th, 2020, in which it is determined, in the second point of the legal grounds, that:

“As has been stated, the reason is based on the lack of legalize of the screenshots of the e-mails and WhatsApp on which the incriminating claim of the complainant is based. These screenshots have not, in fact, been duly noted. Neither has any expert evidence been requested on the matter.“

• Judgment of the Provincial Court of Malaga 75/2020, Section 5, February 21^th , 2020, in which it is determined, in the second point of the legal grounds, that:

“… therefore, although in the present case the documents have been challenged … and the defendant has not proposed expert evidence to prove the authenticity of these e-mails, according to the doctrine set forth, this does not exclude that the court judge can assess such documents in accordance with the rules of sound criticism, being able to give them relevance provided that there are other elements of judgment in the process that can be assessed with it, thus combining their content.”

Considerations

“The appealed ruling is essentially based on the ineffective and invalid expert evidence that has been provided as the only justification for the facts imputed in the letter of dismissal to the plaintiff, for several reasons explained by the Magistrate of Instance in her ruling. The first is because she understands that the expert presented by the company lacks an official degree in computer science, although at this point it is recognized that the expert is the person who provides computer assistance to the company as a freelancer, which implies at least a practical knowledge of what he is hired for. On the other hand, the informal nature of the expert evidence and the questioning of the chain of custody are argued. Special mention is also made of the breach of the guarantees of the plaintiff’s right to privacy at the time of carrying out the inspection and search of the computer equipment, declaring it proven that the plaintiff was not present. In short, the Magistrate of Instance, evaluating this evidence and the testimonies provided at the oral trial concludes that the defects in the practice of the expert evidence carried out by the company prevent granting probative value to this means of proof, and given that it is essential to prove the facts imputed to the plaintiff, declares the dismissal unjustified.”

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From FORENSICTECH we provide our clients with the security of having:

• A computer expert specialized in your case, collegiate and legally authorized to act in the Spanish courts of justice.
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• A computer expert capable of facing the ratification in oral proceedings in all jurisdictional orders.
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