Authenticating social media evidence

This appeal was a Commonwealth appeal out of Erie County.  The opinion is a lengthy one, and it deals with an evidentiary issue of authentication of evidence.  Specifically, the question at issue was one of first impression: what proof is necessary to authenticate social media evidence, such as Facebook postings and communications?

To get to the point, the Superior Court had this to say:

[T]he 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.  Other courts examining the authentication of social media records have ruled that the mere fact that an electronic communication, on its face, purports to originate from a certain person’s social networking accounts is generally insufficient, standing alone, to authenticate that person as the author of the communication.

Overall, the Superior Court decision in this case piggy backed of its prior decision in Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011), which had been affirmed by an equally divided Supreme Court.  In Koch, the Court had been dealing with the issue of authenticating cell phone text messages.  As Koch was the controlling legal precedent in Pennsylvania for the authentication of electronic communications, the Superior Court held that the trial court did not err in relying on it to determine if the Commonwealth had presented sufficient direct or circumstantial evidence that Mangel had authored the Facebook messages they sought to introduce at trial.

The decision is an important one for now dealing with the specific issue of authenticating social media evidence.

**Personally, given the change in composition of the Supreme Court since 2011 when the Supreme Court was equally divided on the issue presented in the Koch case, there is a good chance that this issue goes up on appeal to the Supreme Court once more so the High Court can have the final say on this matter.