Wednesday, March 21, 2018

Pennsylvania Superior Court Holds that Social Media Posts Must Be Authenticated Before Being Admissible in Evidence

Every once in a while a criminal court decision comes along that may have an impact in civil litigation matters.

In the case of Commonwealth v. Mangel, No. 2018 Pa. Super. 57 (Pa. Super. March 15, 2018 Musmanno, S.J. Ott, J., Shogan, J.)(Op. by Musmanno, J.), the Pennsylvania Superior Court ruled that social media posts are inadmissible in criminal cases unless prosecutors can present evidence of who actually authored the commentary.

The court ruled in this fashion after noting that social media accounts can be easily hacked or faked.  In so ruling, the court affirmed an Erie County trial court decision denying a prosecutor's motion in limine seeking to introduce into evidence Facebook posts and messages allegedly authored by the Defendant.

Both the trial court and the appellate court found that merely presenting evidence that the posts and messages came from a social media account bearing the Defendant's name was not enough to allow the evidence in.

The court noted that Facebook posts and messages must instead be authenticated under Pa.R.E. 901 in a manner similar to how text messages and instant messages are authenticated.

Judge Musmanno wrote that "authenticating social media evidence is to be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing of its relevance and authenticity.”

The Superior Court in Mangel relied on its own 2011 decision in Commonwealth v. Koch which dealt with the admissibility and authentication of cell phone text messages.  Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), affirmed by an equally divided court, 106 A.3d 705 (Pa. 2014) (cell phone text messages); See also In the Interest of F.P., a Minor, 878 A.2d 91, 96 (Pa. Super. 2005) (computerized instant messages).

Click this LINK to view my Pennsylvania Lawyer magazine article on the Commonwealth v. Koch case.

Click this LINK to view the Tort Talk post on the split Pennsylvania Supreme Court decision in Commonwealth v. Koch.

In the recent Commonweath v. Mangel case, the court noted that the Koch court 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.”

The Mangel court ruled, in a case of first impression, that the same standard should apply to social media posts in the criminal court context.

Anyone wishing to read the Commonwealth v. Mangel decision may click this LINK

Commentary:  It is safe to predict that the same standards would be applied in a civil litigation matter as well with respect to the admissibility of social media posts, emails, or text messages.

Source:  Article by Zack Needles entitled "Superior Court Adopts Standard for Authenticating Social Media Post." The Legal Intelligencer (March 21, 2018).

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