As a matter of first impression, the Pennsylvania Superior Court recently 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 court judge, denying the prosecution’s motion in limine to introduce into evidence Facebook posts and messages allegedly authored by one of the defendants.
The defendants in the case were charged with aggravated assault, simple assault and harassment for an incident occurring at a graduation party. In the affidavit of probable cause, the victim stated that he was struck in the back of the head, knocked to the ground and repeatedly kicked and punched by the defendants. While the victim did not know the defendants, he was able to identify them by seeing their pictures on Facebook.
As part of their case, the Commonwealth filed a motion in limine to introduce various screenshots from one of the Defendant’s Facebook pages. While the Commonwealth provided a forensic expert attempting to authenticate the screen shots as originating from one of the Defendant’s Facebook pages, the trial judge denied the motion on the grounds that the Commonwealth failed to provide any evidence to establish to a degree of reasonable certainty that the Facebook posts and messages it wanted to authenticate and introduce into evidence were actually authored by the Defendants, or belonged to an account he operated.
The Commonwealth appealed, arguing that the court applied the incorrect standard in authenticating social media posts. The Commonwealth asserted that the proper standard is whether the jury “could reasonably find the authenticity of the Facebook postings by a preponderance of the evidence,” instead of the higher burden applied by the court that is not required by either the rules of evidence or controlling case law.
On appeal, the Superior Court acknowledged that the question of what proof is necessary to authenticate social media evidence, such as Facebook posts, is an issue of first impression, and looked to case law, specifically Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011). In Koch, the Superior Court considered the authentication requirements of other forms of electronic communications, such as instant message and cell phone text messages. The court in Mangel interpreted Koch as requiring a proponent of social media posts as evidence to provide direct or circumstantial evidence that the defendant in fact authored those posts.
Judge John L. Musmanno, who authored the decision, acknowledged the unique challenges that authentication of electronic evidence brings, stating that “[s]ocial 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 Pa.R.E. 901 and Pennsylvania case law, similar to the manner in which text messages and instant messages can be authenticated.”
Based upon its reliance on Koch, the Court set the following standard for authentication of social media posts:
[T]he proponent of social media evidence must present 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, or contextual clues in the communication tending to reveal the identity of the sender. Other courts examining the authentication of social media records have ruled that the mere fact that an electronic communication, on its face, purports to originate from a certain person’s social networking accounts is generally insufficient, standing alone, to authenticate that person as the author of the communication.
While the case dealt with evidence in a criminal case, union attorneys will undoubtedly argue that the same lofty standard should be applied in labor arbitrations for the submission of social media evidence. As a result, when engaging in internal investigations of employees, employers should press the employee under investigation to admit to the ownership of Facebook or other social media accounts, and push for admission of posting such material. Further, employers should review their social media and other policies to determine their ability to access communications stored on municipal owned equipment.