"Instant messaging," commonly abbreviated "IM," is an increasingly popular and convenient means of communicating over the Internet. An instant message is a written communication that is instantly exchanged electronically between participants over computer networks, cell phones, or other wireless devices. A Pennsylvania court recently decided that printouts of instant messaging are admissible in court. A juvenile accused of assault was convicted based on trial evidence that included "instant messages" that he sent to the victim over the Internet.

The juvenile denied that he was the aggressor in a serious fight that occurred at a school bus stop. To prove motive, the prosecutor offered into evidence printed copies of the juvenile's instant messages in which the juvenile accused the victim of stealing from him and threatened that he would beat the victim physically. The juvenile's lawyer objected to the admission of the messages because no proof existed that the juvenile actually wrote or sent them himself.

The court declined to create a "whole new body of law just to deal with e-mails or instant messages." The court acknowledged that e-mails and instant messages are cloaked in anonymity--while they can be traced to a particular computer they usually cannot be connected to a specific author with certainty. Unless the purported author is actually witnessed sending the e-mail or IM, there is always the possibility it is not from the individual identified as the sender. The court agreed that anyone with the right password can gain access to another's e-mail account and send a message ostensibly from that person.

However, the court also noted that the same uncertainties exist with traditional written documents--a signature may be forged, a letter may be typed on another person's typewriter, distinct letterhead stationery may be copied or stolen. The court concluded that e-mail messages and similar forms of electronic communication, such as IM, can properly be authenticated within the existing framework of Pennsylvania law. There is a history in the courts of admitting writings into evidence if the circumstances surrounding the creation or delivery of the writing tend to prove the identity of the author. It is then up to the judge or jury to decide if the proof of authorship is clear.

Increasingly, Pennsylvania courts are recognizing faxed and e-mailed documents and signatures as binding. While it remains advisable to sign important legal documents by hand and to keep the original document, your use of electronic communications may be legally binding and/or will be admissible in court if all of the circumstances support the attribution of the document to you. Any time your e-mail or instant message account appears to be compromised by unauthorized use, you should immediately review the account activity and preserve any available evidence of the unauthorized use. Otherwise, unauthorized communications could be attributed to you.