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Evidence Of Authorship Needed To Authenticate Social Media Evidence Under PA R.E. 901

February 7th, 2019

In a case of first impression, the Pennsylvania Superior Court ruled in Commonwealth v. Mangel, 2018 PA Super 57, 181 A.3d 1154 (Pa. Super. Ct. 2018) that the proponent of social media evidence must present direct or circumstantial evidence that tends to corroborate the identity of the author of the post or message in question, not merely that the account belongs to a particular person.

Mangel was a criminal prosecution in which Defendant was charged for his alleged involvement in a fight.  The prosecution filed a motion in limine to introduce screenshots of Facebook posts and chat messages obtained from an account bearing the same name as Defendant.  At the hearing on the motion, the prosecution’s computer forensics expert attempted to authenticate the posts and messages by showing the Facebook account belonged to the Defendant.  The expert stated she determined the account belonged to Defendant because the name, hometown and high school listed on the account were the same as Defendant’s, as well as the fact that the account was verified using a cell phone number registered to Defendant’s address.  However, the trial court denied the motion after the expert was unable to say with a reasonable degree of certainty that Defendant was responsible for the particular posts and messages.

On appeal, the court looked to two previous Pennsylvania decisions that considered the authentication of computerized instant messages and cell phone text messages: In the Interest of F.P., a Minor, 878 A.2d 91, 96 (Pa. Super. 2005), and Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011), affirmed by an equally divided court, 630 Pa. 374, 106 A.3d 705 (2014).  The court echoed similar concerns as those in Koch, that email and social media accounts can be accessed from any device if one obtains the required user identification and password, and an additional concern that social media accounts can be falsified or illegitimately accessed with greater ease.  Despite these concerns, the Superior Court held that social media records and communications can be properly authenticated within the existing framework of Pa. R.E. 901 and Pennsylvania case law.

The court instructed that the “authentication [of] social media evidence is to be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing of its relevance and authenticity.”  Further, there must be direct or circumstantial evidence that tends to corroborate the identity of the author of the communication in question, such as testimony from the person who sent or received the communication and/or other contextual clues tending to reveal the identity of the sender.  The court found the mere fact that the Facebook account in question matched Defendant’s name, hometown and high school was insufficient to authenticate that Defendant authored the posts and messages offered by the prosecution.  As such, the court affirmed the denial of the Commonwealth’s motion in limine to introduce the social media evidence – finding the trial court had not abused its discretion.

Opinion by Musmanno, J. – Before: Shogan, J., Ott, J., and Musmanno, J.

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