Pennsylvania Finally Has Guidance on Social Media Authentication

I have written and spoken many times on social media and its use in court. To an extent, I was engaging in a highwire act without a net, because no appellate court in Pennsylvania had provided any guidance on the issue of authentication for admissibility purposes. As a result, all I could do was gather Pennsylvania opinions from trial courts, opinions from courts in other jurisdictions, and identify what I felt was the way to handle authentication in my home jurisdiction. Well, finally, I can quit the highwire act, because the Pennsylvania Superior Court has provided us with an opinion on social media authentication. And fortunately, the Court decided to follow along with what is happening throughout most of the country.

Essentially this is what you need to know:

1. You need to be able to show the Judge some evidence that the person alleged to have written the content has ownership of the account and wrote the content. The standard is within a reasonable degree of certainty.
2. You can do this with a variety of pieces of evidence, either direct or circumstantial.
   1. Ask the person on the stand if they own the account and if they wrote the content.
   2. Show the writing style of the person matches the account and the specific content.
   3. Contextual clues within the content itself.
   4. Forensic evidence external from the account.
      1. On the phone, computer, etc

None of this is surprising. Essentially the court recognized that there are complex issues that come with authenticating social media evidence, but that the resolution should be much the same as authenticating other forms of evidence where there can be problems identifying who actually wrote the content. This would include email, chats, texts, and so on. The Court relies heavily on the Browne opinion from the 3rd circuit.

The case is Commonwealth v. Mangel, 2018 PA Super 57 (2018). Rightfully, the failure of the prosecution to provide either direct or circumstantial evidence that the individual alleged to have written the content did so, caused the trial court to deny admission of the Facebook content. The Superior court upheld the trial court’s ruling on the matter.