In a matter of first impression, the Superior Court of Pennsylvania recently addressed the standard for authenticating social media evidence in Commonwealth v. Mangel (March 15, 2018). In an opinion by Judge Musmanno, a unanimous three judge panel affirmed the trial court’s denial of a motion in limine to introduce Facebook posts and chat messages allegedly posted by the Defendant, Tyler Mangel.
In this criminal case, the Commonwealth charged Mangel with assault and harassment following an alleged fight at a graduation party. Prosecutors obtained Mangel’s Facebook records, seeking to introduce screenshots of a Facebook account bearing the name “Tyler Mangel,” undated online and mobile device chat messages, and a photograph of bloodied hands posted to Facebook by another user. In support of this evidence, the prosecution presented expert testimony from a detective who compared the screen shots provided by the prosecution to the Facebook page she found online by searching for the Defendant’s name. In addition, she testified that the “Tyler Mangel” Facebook page listed the defendant’s high school, was registered to the e-mail “[email protected],” and was associated with a cell phone number registered to “Stacy Mangel.”
Based on this evidence, the expert testified that she believed the account she had located “should be the same” as the account from which the prosecution collected the evidence in question. In addition, the expert added that there were some photos posted to the account that appeared to be the defendant. She also provided her opinion that the chat messages at issue had come from Mangel. However, she did not provide an IP address to confirm the source of the messages and testified that she could not, “with a reasonable degree of certainty,” rule out that someone else had intervened or used the account in question.
On appeal, the Superior Court highlighted authenticity concerns regarding the digital evidence at issue similar to those it had raised in In the Interest of F.P. (computerized instant messages), Commonwealth v. Koch (cellular text messages), and to those raised by the Third Circuit in United States v. Browne (Facebook chat logs). In Koch, for example, the court noted that authenticating electronic communications required “more than mere confirmation of that number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.”
The Mangel court determined that though social media evidence raised similar authorship concerns to e-mails and instant messages, “[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.”
Despite these additional concerns, the court determined that social media evidence, like other digital communications, could be properly authenticated under the existing framework of Pa.R.E. 901 and related case law. The court then instructed that social media posts must be evaluated on a “case-by-case” basis in order to establish relevance and authenticity, like all documentary evidence. Then, the opinion provided a roadmap for authenticating social media evidence: “[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.”
Applying this standard, the court affirmed the ruling of the lower court, noting that “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.”
The Mangel court noted that this standard, requiring some evidence of authorship rather than evidence only connecting an individual to ownership of a social media account, is consistent with courts that have addressed similar issues in the states of Massachusetts, Mississippi, Texas, and Maryland, as well as in the U.S. Court of Appeals in the Second and Seventh Circuits.
As a contemporary issue, however, courts continue to grapple with the appropriate standard for the authentication of social media evidence. In Maryland, for example, the Court of Special Appeals first addressed the question in 2010 in Griffin v. State, raising similar concerns as the Mangel court as to the ease of fabricating social media accounts or accessing another’s password and user information.
The Griffin decision, which suggested a “greater scrutiny” was necessary for the authentication of social media evidence, suggested three non-exclusive methods of authentication of ownership or authorship: 1. Testimony from the purported creator of the account and post in question regarding ownership and authorship; 2. Forensic investigation of the actual computer devices of the alleged author to determine the source of the profile and post; 3. Evidence provided directly by the social media organization that linked the account and post to the alleged author and owner. This decision has been interpreted by many commentators as an “elevated” standard, though, like in the Mangel decision, the Court of Special Appeals made clear that social media evidence could be authenticated within the confines of Maryland’s established rules of evidence.
The Maryland Court of Appeals revisited this issue in 2015 Sublet v. State, noting “[i]n the shadow of Griffin, we today are asked to cull the various cases to discern a standard for authentication of social networking evidence.” Rather than expanding on the methods of authentication offered in Griffin, the court noted the approach set out by the Second Circuit in United States v. Vayner, which states: “[w]e express no view on what kind of evidence would have been sufficient to authenticate the [social media] page and warrant its consideration by the jury. Evidence may be authenticated in many ways, and as with any piece of evidence whose authenticity is in question, the ‘type and quantum’ of evidence necessary to authenticate a web page will always depend on context.”
Under these considerations, the court adopted the Vayner test, requiring only that “sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.” Like in Mangel, this evidence may be direct or circumstantial. This amorphous standard arguably offers less guidance than Griffin, and as noted by the dissent in Sublet, the Majority may have “muddled [their] ‘reasonable juror’ standard” to a degree that will produce inconsistent results at the discretion of trial judges.
Nevertheless, in Mangel, as with most courts that have addressed this issue, the Superior Court made a key distinction between presenting evidence of a party’s mere association with a social media account and actual evidence of authorship of a post or chat message. Under Mangel, evidence of actual authorship, whether direct or circumstantial, is necessary to properly authenticate social media evidence. That evidence may come from external sources, like testimony from alleged senders or recipients, or be drawn from the context and content of the actual post or message, but must tend to prove actual authorship of the evidence offered.
Though Mangel and most recent cases addressing the authentication of social media evidence have concerned criminal matters, these decisions have important implications for civil litigation. Social media evidence, which is unique in its accessibility and combination of written, visual, and audio materials, can be invaluable at trial. Given the need to demonstrate actual authorship under Mangel, the use of discovery tools like requests for admission and depositions, as well as the need to preserve social media evidence with as much detail as possible, could make all the difference in getting critical evidence in front of a jury.