Noting how easily social networking accounts can be faked or hacked, the Pennsylvania Superior Court has ruled in a case of first impression that social media posts are inadmissible in criminal cases unless prosecutors can present evidence of who actually authored them.
In a published March 15 opinion in Commonwealth v. Mangel, a three-judge panel of the court unanimously affirmed a decision by an Erie County trial judge denying the prosecution’s motion in limine to introduce into evidence Facebook posts and messages allegedly authored by defendant Tyler Mangel.
Both the trial court and the appellate panel found that merely presenting evidence that a post came from a social media account bearing some identifying information about the defendant is not enough to allow the post into evidence.
“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,” Senior Judge John L. Musmanno wrote for the Superior Court. “Nevertheless, social media records and communications can be properly authenticated within the existing framework of Pa.R.E. 901 and Pennsylvania case law, similar to the manner in which text messages and instant messages can be authenticated.”
Musmanno, joined by Judges Paula Francisco Ott and Jacqueline O. Shogan, laid out how the process should generally work.
“Initially, 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,” Musmanno said. “Additionally, 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.”
Prosecutors sought to introduce evidence of an image of bloody hands posted to Facebook, as well as online and mobile device “chat” messages allegedly authored by Mangel, who has been charged with aggravated assault, simple assault and harassment in connection with a fight at a graduation party, according to Musmanno.
The posts were connected to a Facebook account that bore the name “Tyler Mangel” and listed the account holder’s hometown as Meadville, according to Musmanno. The prosecutors also obtained subscriber records from Facebook that showed the account was created by using the first name “Tyler” and the last name “Mangel,” the registered email addresses of firstname.lastname@example.org and email@example.com and a phone number that, according to Verizon subscriber records, belonged to “Stacy Mangel,” who resided in Meadville.
At a hearing on the motion in limine, the prosecution presented the testimony of Erie County Detective Anne Styn as a computer forensics expert.
The trial court questioned Styn as to whether she could “testify to a reasonable degree of computer and scientific certainty” that Mangel had actually authored the Facebook post and chat messages, according to Musmanno. Styn replied that she could not. Styn also testified that she had not obtained an IP address for the Facebook account in question. The trial court ultimately denied the motion in limine.
On appeal, prosecutors argued that the trial court had applied a higher burden of proof than was required, but the Superior Court disagreed. Noting that the issue of authenticating social media posts is one of first impression in Pennsylvania, the appeals court relied heavily on its own 2011 decision in Commonwealth v. Koch, which dealt with cellphone text messages.
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.”
Musmanno said the same standard should apply to social media posts.
“In our view, the same authorship concerns, as expressed by the Koch court in relation to emails and instant messages, exist in reference to Facebook and other social media platforms, that can be accessed from any computer or smartphone with the appropriate user identification and password,” he said.
Musmanno pointed to rulings by the U.S. Court of Appeals for the Second and Seventh Circuits, as well as state courts in Maryland, Massachusetts, Mississippi and Texas, that required some evidence of authorship in order to verify social media posts.
In Mangel, Musmanno said, the state “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.”
Musmanno added in a footnote that prosecutors failed to produce any evidence that Mangel created or had access to the email accounts or phone number associated with the Facebook account. Nor did prosecutors establish any relationship between Mangel and the owner of the number, the judge said.
Musmanno said in a separate footnote that the trial court correctly applied the expert testimonial standard when questioning Styn as to whether she could testify to a reasonable degree of certainty that the posts were authored by Mangel.
“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,” Musmanno said. “Moreover, there were no contextual clues in the chat messages that identified Mangel as the sender of the messages.”
Counsel for Mangel, Kenneth Bickel of Bickel Law Office in Erie, said he was pleased with the decision.
“I’m happy they respected the ruling of the trial court,” Bickel said, noting that the decision provides much-needed guidance on an important issue.
Mark Richmond of the Erie County District Attorney’s Office handled the case but has since retired. A representative for the office could not immediately be reached for comment.