Nearly everyone uses electronic mail (email) today in order to communicate with bosses, spouses, friends, relatives, girlfriend, and boyfriends. Emails are very pertinent in litigation as they can prove or disprove a case. In family law matters, they can be used to prove abuse, to impeach credibility, or to show intent and conduct.
For electronically stored information to be admissible, it must be: (1) relevant; (2) authentic; (3) not hearsay or admissible under an exception to rule hearsay evidence; (4) original or duplicate or admissible as secondary evidence to prove its contents; and (5) its probative value must outweigh its prejudicial effect.
Emails may be more difficult to authenticate than traditional written communications, as they are more susceptible to being doctored. It is important that any emails forwarded by a client not be manipulated in any manner.
Authentication of emails may be obtained through deposition or witness testimony or through requests for admissions. An email authored by a party to a case will be admissible in evidence as an admission by party-opponent (an exception to the hearsay rule) and that party can be questioned about the content of the email on the stand.
The spousal disqualification rule in Massachusetts applies to both criminal and civil matters. The spousal disqualification provides that “a witness shall not testify as to private conversations with a spouse occurring during their marriage.”
It seems probable that the disqualification of evidence as to confidential communications between husband and wife would apply to the contents of email communications between them.