Jury Allowed to Determine Whether Deleted Email Existed

A district court did not abuse its discretion in admitting testimony regarding the existence of an email that was missing because it would be possible for a jury to determine whether it existed

United States v. Wilde, 2017 BL 3483, 9th Cir. App., No. 15-10302, 1/9/17.

The Ninth Circuit held that a district court did not abuse its discretion in allowing evidence regarding the existence of an email that implicated the state of mind of the defendant in a murder case. The circuit court found that the trial court “exercised its gate-keeping function under Rule 104(b) and determined a reasonable jury could conclude that the disputed email existed.” Additionally, the Ninth Circuit found that the trial court did not commit plain error by not instructing the jury that it should determine whether the email existed before weighing the contents of the missing email. The court stated, “[B]ecause the testimony made clear that there was no record that the contested email was sent or received and its existence was hotly contested, no rational juror would rely on its alleged contents if he or she did not first conclude that it had in fact existed; any instruction to that effect thus could not have made a difference.”