October 05, 2018 Articles

Getting the Snaps and Tweets into Evidence

A rundown of the best practices that will help ensure that crucial evidence is not excluded

by Matthew J. Hamilton, Donna L. Fisher, Jessica K. Southwick

Litigants who proffer data obtained from social networking sites like Facebook, Twitter, and Instagram must authenticate that data before it will be admitted as evidence. Nearly all jurisdictions have a rule of evidence addressing authentication of exhibits and records, many of which mirror Rule 901(a) of the Federal Rules of Evidence. Courts have not agreed, however, on how to satisfy the requirements of Rule 901(a) for social media evidence. Recently, in Commonwealth v. Mangel, 2018 Pa. Super 225, *1 (March 15, 2018), the Pennsylvania Superior Court held that data from the defendant’s Facebook account was not admissible without sufficient direct or circumstantial evidence that the defendant authored the Facebook messages in question or posted the photograph obtained from Facebook. Other jurisdictions have also attempted to establish a definitive standard for admissibility, which has led to two distinct standards for authentication—one that treats social media information like any other type of evidence, and another that holds social media to a more demanding standard on the basis that it is subject to manipulation by persons other than the owner of the account.

This article analyzes Mangel, earlier Pennsylvania decisions and those from other courts to determine whether courts are imposing a more demanding standard of authentication for social media data than for other documentary evidence. No matter what standard applies, without an admission of authorship, lawyers proffering social media evidence should consider the following to authenticate by circumstantial evidence:

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