PA Superior Court Provides Rule for Admissibility of Social Media Posts
Just recently, in Commonwealth v. Mangel, 2018 Pa. Super. 57, the Pennsylvania Superior Court, ruled, at least in the context of a criminal case, social media posts could not be admitted into evidence without first a demonstration of proper authentication. In other words, the party offering the social media post must show proof of authorship.
In 2016, Tyler Mangel was charged with aggravated assault after allegedly assaulting Nathan Cornell at a graduation party. Cornell told police that he was struck in the back of the head, knocked to the ground, and was repeatedly kicked and punched by Mangel. Cornell stated that he did not know Mangel, nor had he been in contact with them during the course of the night, but he was able to identify him through Facebook pictures.
In 2017, the trial court granted the Commonwealth’s Motion for Provider to Provide Subscriber Information, pursuant to 18 U.S.C. § 2307(c) and 18 Pa.C.S.A. § 5743(c) and (d), seeking to obtain Mangel’s Facebook records. Upon acquiring this information, the Commonwealth filed a Motion in Limine to introduce screenshots of certain pages of a Facebook account for “Tyler Mangel,” consisting of undated online and mobile device “chat” messages, and a Facebook screenshot wherein a photograph of purportedly bloody hands had been posted. In support of its motion, the Commonwealth presented the testimony of Erie County Detective Anne Styn, a computer forensics expert.
Styn reviewed Facebook screenshots, including photographs, captured from online and mobile device chats of Tyler Mangel’s account taken by Trooper Schaeffer of the Pennsylvania State Police, one of which read “If all that you leave is a scratch you know you’re a bitch.” The account information showed the owner to be Tyler Mangel from Meadville, Pennsylvania. Moreover, Styn’s independent Facebook search revealed only one account for “Tyler Mangel;” the username associated with the account was “Mangel17;” and, the registered email addresses were mangel17@facebook and tylerkm@hotmail.com. Finally, the Facebook subscriber records indicated that the Facebook account had been verified by the cell phone number (814) ***-4409. Styn then obtained the Verizon subscriber records associated with this phone number, which identified the owner of the number as “Stacy Mangel,” residing at 10866 Pettis Road, Meadville, Pennsylvania. The trial court took judicial notice of the fact that this particular address was the same as the address listed in the Criminal Complaint filed against Mangel. Based upon the foregoing, it was Styn’s opinion that the Facebook account owner “should be the same” as the online and mobile accounts provided by the Commonwealth. However, Styn could not say to within reasonable scientific certainty that someone else did not intervene or grab the account. The defense then introduced a screen shot of his Facebook investigation, which showed five accounts bearing the name, “Tyler Mangel,” one of which listed Meadville, Pennsylvania, as the hometown. Based upon the foregoing, the court denied the Commonwealth’s motion.
Because the social media posts were critical to the Commonwealth’s case, the Commonwealth appealed the decision claiming that the trial court erred by applying “a reasonable degree of certainty, reliability, scientific, technological certainty” standard in determining whether the Commonwealth had satisfied the requirements for authentication of the proffered Facebook records. The Commonwealth argued that this case was analogous to United States v. Browne, 834 F.3d 403 (3d Cir. 2016), wherein the United States Court of Appeals for the Third Circuit examined the issue of the authentication of social media evidence and applied a “preponderance of the evidence” standard for authentication of Facebook records.
Pennsylvania Rule of Evidence 901 provides: authentication is required prior to admission of evidence. The proponent of the evidence must introduce sufficient evidence that the matter is what it purports to be. Testimony of a witness with personal knowledge that a matter is what it is claimed to be can be sufficient. Evidence that cannot be authenticated by a knowledgeable person may be authenticated by circumstantial evidence.
In United States v. Browne, the United States Court of Appeals for the Third Circuit addressed the authentication of Facebook chat logs in connection with under age sex crimes and concluded that the Facebook records were properly authenticated under F.R.E. 901. The Browne Court relied upon a substantial amount of circumstantial evidence to determine that the government had provided sufficient evidence from which the jury could reasonably find the authenticity of the records by a preponderance of the evidence.
Rather than relying on Browne, the Superior Court reviewed the cases of Interest of F.P., a Minor, 878 A.2d 91, 96 (Pa. Super. 2005) and Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), wherein the courts considered the authentication of computerized instant messages and cell phone text messages. In F.P., the defendant did not deny that he sent text messages threatening F.P., and he referred to himself by his first name in one of the texts. The court concluded that sufficient circumstantial evidence existed to authenticate the records. In Koch however, while the defendant admitted to owning a cell phone, which contained text messages indicating drug sale activity, the Commonwealth’s detective admitted that he could not confirm that the defendant was the author of the text messages. The Koch court ruled “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.” Thus, the testimony of the detective was insufficient to authenticate the text messages in question, noting that there was no testimony from any person who had sent or received the text messages, nor any contextual clues in the drug-related text messages that tended to reveal the identity of the sender.
Relying on Koch, the Superior Court found that the Commonwealth presented no evidence, direct or circumstantial, tending to substantiate that Mangel created the Facebook account in question, authored the chat messages, or posted the photograph of bloody hands. The mere fact that the Facebook account in question bore Mangel’s name, hometown and high school was insufficient to authenticate the online and mobile device chat messages as having been authored by Mangel. Moreover, there were no contextual clues in the chat messages that identified Mangel as the sender of the messages.
While this was a criminal case, it is reasonably anticipated that the same rule would be applied to civil cases going forward.
