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March 2018 
Thomas L. Mueller 
Lucas and Cavalier, LLC  

The Pennsylvania Superior Court held as a matter of first impression in a recent criminal case that in order to be admitted into evidence, social media posts require authentication in the form of direct or circumstantial evidence tending to corroborate the identity of the author in question. 

In Commonwealth v. Mangel, 2018 WL 1322179 (Pa. Super. 2018), the defendant, Tyler Kristian Mangel (“Mangel”) allegedly assaulted Nathan Cornell at a graduation party on June 26, 2016.  After filing a Motion for Provider to Provide Subscriber Information in order to obtain Mangel’s Facebook records, which was granted, the Commonwealth filed a Motion in Limine to introduce screenshots of certain pages of a Facebook account for “Tyler Mangel,” consisting of undated online and mobile device chat messages and a Facebook screenshot of a photograph of purportedly bloody hands.

At a hearing on the Motion in Limine, the Commonwealth presented the testimony of Detective Anne Styn, who was qualified as an expert in computer forensics.  Detective Styn compared her Facebook search results to certain screenshots she received from the Commonwealth and noted both the screenshots and the Facebook account bore the name “Tyler Mangel” and both listed the account holder as living in Meadville, Pennsylvania and having attended Meadville High School.  Furthermore, Detective Styn testified the Facebook account was verified by a cell phone number belonging to “Stacy Mangel,” who resided at the same address listed in the Criminal Complaint filed against Mangel.  On cross-examination, Detective Styn testified she did not obtain an IP address for the Facebook account (which would have enabled her to determine the specific location from which the posts were made, and the specific computer or network used to post them).

The trial court denied the Motion in Limine and found Mangel did not state the Facebook account was his or that he authored the posts and messages at issue, nor did the Commonwealth introduce subsequent testimony from another knowledgeable person to substantiate the Facebook page belonged to Mangel.  The Commonwealth also failed to indicate the exact time the posts and messages were made, thereby raising questions as to the connection between the posts and messages to the June 26, 2016 incident. 

On appeal, the Superior Court discussed several of its previous decisions, including Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011), aff’d by an equally divided court, 106 A.3d 705 (Pa. 2014).  In Koch, the court was mindful of the challenges presented in authenticating electronic communications, most notably those associated with establishing authorship, in that email addresses and other accounts might be accessed without permission.  Accordingly, the court in Koch held “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.”  Koch, 39 A.3d at 1005.

The Superior Court also took note of the recent case of United States v. Browne, 834 F.3d 403 (3d Cir. 2016), in which the United States Court of Appeals for the Third Circuit addressed the authentication of Facebook chat logs and held “it is no less proper to consider a wide range of evidence for the authentication of social media records than it is for more traditional documentary evidence[, and the] Rules of Evidence provide the courts with the appropriate framework within which to conduct that analysis.”  Browne, 834 F.3d at 412. 

Based on these standards, the Superior Court affirmed the trial court’s order denying the Commonwealth’s Motion in Limine, holding “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.” Mangel, 2018 WL 1322179, *6.  In this case, the fact that the Facebook account in question appeared to belong to someone with Mangel’s name and bore the same hometown and high school was insufficient to authenticate the messages at issue as having been authored by Mangel, and the Commonwealth presented no contextual clues in the messages tending to identify Mangel as the sender of the messages. 

In light of the Superior Court’s holding, it is increasingly important for practitioners to obtain, wherever possible, admissions of ownership of social media accounts and email addresses, and to review closely all sides of communications for context clues as circumstantial evidence of authorship.  Finally, every effort should be made to identify IP addresses, geo tags, and any other technical methods of tracking the location and origination of online posts and messages. 

            The attorneys at LUCAS AND CAVALIER, LLC continually monitor updates to these and other areas of law and are available to answer any questions arising from this case.

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