In Commonwealth v. Mangel, the Pennsylvania Superior Court considers the appropriate authentication standard for social media materials in Pennsylvania
In Commonwealth v. Mangel, 2018 PA Super 57 (Pa. Super. Ct. Mar. 13, 2018), the Commonwealth of Pennsylvania appealed a trial court decision denying admission of certain insufficiently-authenticated social media materials to the Pennsylvania Superior Court, which “appears to be an issue of first impression in Pennsylvania.” Pennsylvania Rule of Evidence 901, which addresses the establishment of evidentiary authenticity, mirrors Federal Rule of Evidence 901, which we have discussed before in this context.
Social media materials, like so many kinds of ESI, are still a relatively new cultural and legal phenomenon, and as a result, many still view such sources as inherently suspect compared to more traditional sources. One classic decision waxes poetic about the dangers of “voodoo information taken from the Internet.” As a result of this fear and discomfort, there has been a great deal of disagreement about how social media materials can be authenticated.
As we reviewed in our Social Media in eDiscovery Series last summer, two groups of cases have emerged, and jurisdictions have split between what’s known as the Maryland Rule and the Texas Rule. The Texas Rule, which originates with Tienda v. State of Texas, No. PD–0312–11 (Feb. 8, 2012), attempts to treat social media materials in the same way as other materials and focuses on putting the question of authenticity to the jury (pursuant to Rule 104(b)), once a sufficient initial showing has been made. The Maryland Rule, which originates with Griffin v. State of Maryland, 19 A.3d 415 (Md. 2011), sets a higher bar for social media materials to clear before reaching the jury for consideration because of fears that they are inherently less reliable.
Over recent years, jurisdictions have split between these two approaches. For example, Connecticut, Mississippi, and Colorado have each adopted an approach like the Maryland Rule, and Georgia, Delaware, Kansas, Missouri, Ohio and Tennessee have each adopted an approach like the Texas Rule.
In Commonwealth v. Mangel, the Pennsylvania Superior Court appears to stake out a position more in line with the Maryland Rule than the Texas Rule. The Commonwealth attempted to authenticate and admit several screenshots, including photos and chat messages, taken from a Facebook account they alleged belonged to the Defendant, but neither the trial court nor the appellate court was convinced.
The Commonwealth tried to establish authenticity using circumstantial evidence pursuant to Pennsylvania Rule of Evidence 901(b)(4). A detective expert in computer forensics testified about her investigation of the materials, including obtaining records from Facebook and Verizon. She identified distinctive characteristics of the account, including the Defendant’s name, the Defendant’s home town, the Defendant’s high school, a mobile phone number belonging to someone at the Defendant’s address, and other details.
The Court, however, cited Griffin and related cases approvingly and expressed concerns over the inherent unreliability of social media and similar materials:
In our view, the same authorship concerns, as expressed by the Koch Court in relation to e-mails and instant messages, exist in reference to Facebook and other social media platforms, that can be accessed from any computer or smart phone with the appropriate user identification and password. . . . 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. [emphasis added]
The Court emphasized that tying the messages to the account or even the account to the Defendant was insufficient. Specific authorship of the specific materials by the individual must be demonstrated in some way:
. . . the 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. [emphasis added]
The Court concluded that the distinctive characteristics identified by the Commonwealth were insufficient to put the question of authenticity to the jury without more direct evidence of authorship:
Here, 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. [emphasis added]
Based on this conclusion, the Court affirmed the decision of the trial court denying the admission of the Facebook materials.
The Court’s approach to applying Rule 901(b)(4) – without any mention of the role of Rule 104(b) and with the heightened authorship evidence requirement – effectively creates a higher barrier for the authentication of social media evidence, similar to the ones discussed in Griffin and the other Maryland Rule cases.