Today’s guest post is by Reed Smith associate Regina Nelson. In it she tackles an issue that inevitably arises whenever ediscovery for defendants is successful, that is, what must be done to have the fruits of that discovery be admitted at trial, otherwise known as authentication. She discusses a recent Pennsylvania appellate case that addressed this issue. As always our guest bloggers are 100% responsible for their posts, and deserving of all the credit (and any blame) for what they write.
Social media is ubiquitous. Almost everyone knows someone who is a member of Facebook, Twitter or Instagram, even those of us who do not use these services personally. As people post about their comings and goings or opinions on social media, it is not surprising that they are becoming an issue in both civil and criminal cases. The blog has a cheat sheet, “Ediscovery for Defendants,” with over 100 decisions, devoted to discovery of plaintiffs’ social media.
In a recent case of first impression in Pennsylvania, the Superior Court in a criminal case Commonwealth v. Mangel, 181 A.3d 1154 (Pa. Super. Ct. Mar. 15, 2018), discussed what lawyers need to do at trial to authenticate an opponent’s social media pages – in this case, on Facebook. While Mangel applied Pennsylvania law, it is potentially relevant to federal cases as well because Pennsylvania Rule of Evidence 901 is almost identical to Federal Rule of Evidence 901.
Under Pennsylvania Rule of Evidence 901, authentication is a prerequisite to admission of most evidence. Like the federal rule, the standard is adequate proof that the evidence is what it purports to be. Usually testimony is enough to authenticate evidence. Evidence can also be authenticated by other methods, including circumstantially. Id. at 1159. Admissibility of electronic communications is evaluated on a case-by-case basis. Merely showing that the electronic communication belonged to someone was not sufficient to authenticate it. See Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. Ct. 2011). Mangel addressed how much circumstantial evidence was sufficient to corroborate the identity of the sender.
In Mangel, the trial court had denied a Motion in Limine to admit Facebook posts and messages allegedly authored by the defendant in an assault and battery case. Id. at 1155. The alleged victim could identify the defendant from Facebook pictures. Id. at 1155-56. The social media evidence at issue was: (1) screenshots of certain Facebook account pages in the name of the defendant, and (2) a Facebook screenshot of a photograph of purportedly bloody hands had been posted by another person. Id. at 1156.
To authenticate the Facebook evidence, the prosecution relied on a qualified expert in computer forensics. Id. After researching Facebook and finding a relevant account, the expert determined that the Facebook account she located with a search for the defendant’s name also matched that of the Facebook pages provided to her by the Commonwealth. Id. That identification evidence was significantly undermined on cross-examination, however. First, the prosecution expert conceded that she could not say to a reasonable degree of certainty that the defendant, and not someone else, authored the posts. Id. at 1157. Second, the expert failed to obtain an IP address for the account in question. Id. Third, the expert was impeached by defense counsel with a Facebook search showing multiple accounts for someone with the same name as the Defendant. Id. After hearing this testimony, the trial court denied the Motion in Limine. Id.
The Superior Court in Mangel expressed concerns about authorship of the Facebook pages and posts similar to the Koch case, which it discussed at some length. Id. at 1160. To authenticate social media evidence, the prosecution had to present direct or circumstantial evidence corroborating the identity of the on-line author. Id. at 1161. Critically, the defendant in Mangel did not concede at any time that the Facebook account was his or that he authored the posts. Id. at 1163. Establishing authorship was key due to the nature of social media. “[T]he same authorship concerns . . . 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.” Id. at 1162. Another failing by the prosecution only compounded its expert’s weaknesses. It never obtained the username or password for the Facebook account to confirm its authenticity. Id. at 1163. That a Facebook page contained the defendant’s name, hometown and school was not sufficient to establish that the defendant actually authored the posts on the page.
The mere fact that the Facebook account in question bore [defendant’s] name, hometown and high school was insufficient to authenticate the online and mobile device chat messages as having been authored by [him]. Moreover, there were no contextual clues in the chat messages that identified [him] as the sender of the messages.
Id. at 1164.
In addition to concerns about identity and authorship, issues also arose with the content of the messages and posts. Id. at 1163-64. Nothing established the time the posts and messages were created. Id. at 1163. Absence of a timestamp precluded confirmation that the posts were made in connection with the alleged incident. Id. at 1163-64. The Facebook posts were ambiguous in that they did not specifically reference the defendant. Id. Finally, the posts and messages were devoid of any “distinct characteristics” indicative of the author’s personal style that might have corroborated the defendant as their author. Id.
Thus, the Superior Court agreed with the trial court’s decision. There must be affirmative evidence that the defendant was the actual sender of the messages. Id. at 1164. Mangel should serve as a reminder that locating seemingly relevant social media evidence is only the first, not the last step. Social media evidence must also be authenticated before it will be admitted into evidence. By all means, learn from the mistakes made by the prosecutors in Mangel.
To avoid a similar situation, those seeking to authenticate social media should consider taking certain steps:
- Establish who, other than the account owner, has access and/or authorship rights. If such other persons exist, their actions must be excluded.
- Seek authorship admissions from the owner.
- If, as in Mangel, such admissions are not forthcoming, conduct additional investigations to exclude other potential authors.
- If Facebook messenger or some other messaging tool is involved, similarly establish authorship of relevant posts.
- If necessary, depose the non-authoring recipients of messages to confirm their knowledge of the sender’s identity.
- Obtain relevant IP addresses of social media evidence, ideally from material provided by the social network operator.
- Obtain timestamps, or other temporal data, again from the website operator.
- Obtain available metadata from the operator and have it forensically reviewed.
- Hire a competent expert, knowledgeable about the applicable certainty standards for opinions, who will not wilt under cross-examination.
- Include questions about the contents of the social media at issue, such as identification of photographs, in deposition outlines for witnesses other than the account owner.
- If slang is an obstacle, have slang interpreted by the account owner and (if necessary) others during discovery.