On March 15, 2018, the Pennsylvania Superior Court held that social media posts must be authenticated if they are going to be introduced as evidence in criminal cases. In Commonwealth v. Mangel, a three-judge panel affirmed a decision made by an Erie County trial judge, ruling that social media posts are not admissible in criminal cases unless additional evidence can prove that the defendant is actually the person who wrote the social media post.
The reason behind this ruling is the court taking notice of how easily social media accounts can be faked or hacked. According to Senior Judge John L. Musmanno, “Social media evidence presents additional challenges because of the great ease with which a social media account may be falsified, or a legitimate account may be accessed by an imposter. Nevertheless, social media records and communications can be properly authenticated within the existing framework [of the law].”
This framework relies on Pa.R.E. 901, which establishes that to satisfy the requirement of authenticating evidence, the proponent must produce evidence sufficient to support that the item is what the proponent claims it is. The trial court and appellate court in Mangel found that merely presenting evidence that a post came from a social media account with some identifying information about the defendant is not enough to allow that post into evidence. Initially, authenticating social media evidence is done on a case-by-case basis to determine whether there is a foundational showing of relevance and authenticity. The person offering the social media evidence must also present evidence that corroborates the identity of the author, whether it is testimony from the person regarding the communication or contextual clues that tend to reveal the identity of the sender.
In the present case, prosecutors tried to introduce evidence purported to be authored by the defendant. The posts were connected to a Facebook account with the name of the defendant and listed to his hometown, along with other similarities. However, a computer forensics expert testified that she could not testify to a reasonable degree of computer and scientific certainty that the defendant had actually authored the post and chat messages and, in addition, was unable to obtain an IP address for the Facebook account.
The Court relied heavily on the 2011 decision in Commonwealth v. Koch, which held that “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.” In addition to the court establishing that social media posts are following in Koch’s footsteps, Pennsylvania joins the U.S. Court of Appeals for the Second and Seventh Circuit and state courts in Maryland, Massachusetts, Mississippi, and Texas in requiring some evidence of ownership to authenticate social media posts.
To read more, check out: