As they say, “The more things change, the more they remain the same.” And so it is with the changing forms of evidence in the digital age including various types of electronic messages and a wide variety of social media platforms designed for the exchange of information, photos and videos. But what has not changed are the long-standing and staid Rules of Evidence applicable to all forms of evidence.
The old and the new are colliding in recent cases in which the state and federal courts of Pennsylvania have addressed the novel issues of how different forms of digital evidence are to be authenticated before such evidence may be ruled admissible in a court of law.
While the seminal decisions laying down the requirement and parameters of the authentication of digital evidence have all come out of the criminal court context, it can be anticipated that identical rulings will be handed down in the civil litigation context as well in the future.
Rule of Evidence 901
Under Pa.R.E. 901(a), which is consistent with its counterpart Federal Rule of Evidence, it is provided that “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”
The rule goes on to give specific examples of how different types of evidence may potentially be authenticated. Currently, there is no specific example provided with respect to the new situation of social media or digital evidence. Perhaps there is a need for an amendment of Rule 901 in this regard in light of the recent case law on the issue.
According to the commentary under Pa.R.E. 901, “the authentication or identification requirement may be expressed as follows: When a party offers evidence contending either expressly or impliedly that the evidence is connected with a person, place, thing, or event, the party must provide evidence sufficient to support a finding of the contended connection,” see Pa.R.E. 901, Commentary, citing Commonwealth v. Hudson, 414 A.2d 1381 (1980); Commonwealth v. Pollock, 606 A.2d 500 (1992).
Recent decisions handed down in Pennsylvania have begun to confirm that the mandates of Rule 901 apply to all forms of electronic and social media messages.
A Case of First Impression
In a 2005 decision issued during the dawn of the digital age, the Pennsylvania Superior Court addressed, for the first time, the issue of authentication of evidence of instant messages in a criminal court matter in the case of In the Interest of F.P., a minor, 878 A.2d 91 (Pa.Super. 2005).
In the case of F.P., the Superior Court rejected the argument that instant messages, which were the precursor to emails and text messages, are inherently unreliable because of their relative anonymity and the occasional difficulty connecting a message with its author given that any person could be using the computer from which the message originated (assuming that person had the appropriate password).
The court in F.P. noted that these issues were no different from letters or other paper documentary evidence that could be forged or denied by the alleged writer. While the court in F.P. acknowledged that, “unless the purported author is actually witnessed sending the email, there is always the possibility it is not from whom it claims, … the same uncertainties exist with traditional written documents.” For example, a “signature can be forged; a letter can be typed on another’s typewriter; distinct letterhead stationary can be copied or stolen.”
The court reiterated its belief that that email messages and similar forms of electronic communication could be properly authenticated within the existing framework of Pa.R.E. 901 and Pennsylvania case law and without the need for the creation of new rules or law for this new form of evidence.
As such, the court in the F.P. case held that, like documentary evidence, electronic messages could be properly authenticated within the framework set forth under Pa.R.E. 901.
The F.P. case laid out the framework for authenticating digital evidence by first reaffirming the basic principle that the admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion.
It was additionally noted that, like paper evidence, evidence of paperless electronic messages could also be authenticated by either direct proof or by circumstantial evidence. The court noted that, under Pa.R.E. 901, such direct evidence in support of authentication could be in the form of testimony of a witness with personal knowledge that the evidence is what the proponent claims it to be.
The court also held that proof of any circumstances which will support a finding that the writing is genuine can also suffice in court to authenticate the writing.
In the F.P. case, the court pointed to circumstantial evidence relating the content of the messages to prior statements and actions by the alleged sender. The court also was influenced to allow the evidence of the text message as it appeared that the alleged sender sent the message given that he used his own first name in the message sent.
Accordingly, the court in F.P. found that the evidence of the instant messages had been properly authenticated and were, therefore, properly admitted into evidence.
Another Case of First Impression
Six years later, another case of first impression, this time pertaining to text messages, was handed down in the matter of Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), affirmed by an equally divided court, 106 A.3d 705 (Pa. 2014). The split affirmance by the Supreme Court leaves the Superior Court decision in Koch as good law.
Koch involved an appeal by a criminal defendant from a Cumberland County conviction for drug offenses based, in part, on evidence from text messages allegedly sent by the defendant. On appeal, the defendant challenged the admissibility of the evidence of text messages on the basis of lack of authentication.
The Pennsylvania Superior Court in Koch ruled that text messages were not admissible unless they were properly authenticated, i.e., unless there was evidence presented that the messages did indeed come from the alleged sender.
The defendant in the criminal case asserted that there was no evidence to establish that she had sent any of the drug transaction-related text messages. She also asserted that it had not been established that the drug transaction-related texts received on the phone were specifically directed to her. Moreover, the defendant offered evidence that her cellphone was also allegedly being used by someone else at the time the messages were sent.
On appeal, the Superior Court found that the text messages were not properly authenticated and, therefore, should not have been admitted into evidence during the course of the trial. The criminal conviction was overturned.
As support for its ruling, the Superior Court in Koch pointed to the above-noted Pennsylvania Superior Court decision in In the Interest of F.P., a minor, 878 A.2d 91 (Pa.Super. 2005) pertaining to instant messages.
The Superior Court in Koch agreed with the analysis of the F.P. case that electronic messages could be authenticated in the same manner that paper evidence was authenticated. The court in Koch noted that “electronic writings typically show their source, so they can be authenticated by contents in the same way a communication by postal mail can be authenticated.” However, the Koch court cautioned that, while text messages and emails can almost always be electronically traced back to their source cellphone or computer, the sender of such messages is not always thereby automatically identified. In other words, particular cellphones and computers can arguably be utilized by anyone at anytime to send the messages.
The Superior Court in Koch reviewed similar decisions from around the United States and noted that, “in the majority of courts to have considered the question, the mere fact that an email bears a particular e-mail address is inadequate to authenticate the identity of the author; typically, courts demand additional evidence.”
As such, the Superior Court held that there must also be “circumstantial evidence, which tends to corroborate the identity of the sender,” before an electronic message may be authenticated and admitted.
Ultimately, the court found that the trial court abused its discretion in admitting the text messages where the cellphone’s physical proximity to the defendant at the time of her arrest had no probative value with regard to whether she authored the messages.
The Koch requirements for authentication of a criminal defendant’s text messages were followed in the more recent case of Commonwealth v. Mosley, 114 A.3d 1072, 1082 (Pa. Super, 2015). In Mosely, the court found that there was no evidence, direct or circumstantial, clearly proving that the defendant was the author of the drug-related text messages, or any corroborating witness testimony regarding authenticity of the messages. Consequently, the court in Mosely held that the trial court erred in determining that the drug-related texts were properly authenticated.
In Commonwealth v. Murray, 174 A.3d 1147 (Pa.Super., 2017), the Superior Court affirmed a trial court finding that text messages had been properly authenticated. The Murray court noted that ‘the trial court determined that the text messages in question were properly authenticated based on the contextual clues in the messages and the fact that [the officer] retrieved the phone from Murray’s person.”
A similar ruling pertaining to the authenticity of a text message was also handed down in the case of Commonwealth v. Woods, No. 1324 MDA 2013 (Pa. Super.,2014)(unpublished, nonprecedential).
A Third Case of First Impression
In a very recent March 15 decision in Commonwealth v. Mangel, No. 2018 Pa. Super. 57, the Pennsylvania Superior Court ruled, for the first time in state court, that social media posts are inadmissible in criminal cases unless prosecutors can present evidence of who actually authored the posts. That is, the evidence was inadmissible unless it was properly authenticated.
The court in Mangel supported its requirement of authentication by noting that, in this day and age, social media accounts can be easily hacked or even entirely faked.
The Mangel 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.
Judge John L. Musmanno wrote in Mangel 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.”
Consistent with the rulings in the Koch and F.P. decisions, both the trial court and the appellate court in Mangel found that merely presenting evidence that the posts and messages came from a particular social media account bearing the defendant’s name was not enough to rule the evidence admissible. Citing to the F.P. and Koch decisions, the Mangel court noted that these types of Facebook posts and messages must instead be authenticated under Pa.R.E. 901 in a manner similar to the authentication of text messages and instant messages.
The Superior Court also relied upon a prior U.S. Court of Appeals for the Third Circuit decision requiring authentication of Facebook posts in the case of United States v. Browne, 834 F.3d 403 (3d Cir. 2016).
The Third Circuit rejected the government’s argument that pursuant to F.R.E. 902(11) the contents of the “chats” exchanged over Facebook were “self-authenticating” as business records when accompanied by a certificate from Facebook’s records custodian. The court more specifically ruled that the “chats” on Facebook were not business records under FRE 803(6) and thus could not be self-authenticated under FRE 902(11).
The Browne court nonetheless affirmed the appellant’s conviction after finding that the trial record reflected more than sufficient extrinsic evidence to link the defendant to the chats and thereby satisfied the government’s authentication burden under a F.R.E. 901 analysis.
Anticipated impact in civil matters
While all of the above cases pertaining to the authentication of various types of electronic messages arose in the criminal law context, it is safe to predict that identical rulings will be handed down when these issues are raised in a state court or federal court civil litigation matter. The Rules of Evidence pertaining to authentication of evidence are the same regardless of in which type court and which type of litigation the issue arises.
It can be anticipated that this issue of authentication will continue to reoccur not only with respect to authenticating emails and text messages but also tweets, along with commentary, photos, and videos on social media sites such as Facebook, Youtube, Linkedin, Snapchat, Instagram and any other social media platforms that may come into existence.
When planning to rely upon these forms of digital evidence, litigators, prosecutors, and criminal defense attorneys should be prepared to produce the related direct or circumstantial evidence necessary to authenticate the electronic evidence at issue, or risk not being able to utilize the evidence at all.
Daniel E. Cummins is a partner with the Scranton law firm of Foley, Comerford & Cummins. He focuses his practice on the defense of auto accident, premises liability and products liability matters. His Tort Talk Blog can be viewed at www.TortTalk.com.