How is social media evidence authenticated? In a March 15, 2018 opinion in Commonwealth v. Tyler Kristian Mangel and Matthew Robert Craft, the Superior Court of Pennsylvania addressed this issue of first impression.

The Craft case dealt with the authentication of screenshots from various Facebook posts and messages. The Court looked to past cases dealing with the admissibility of electronic communications, recognizing Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011) as the controlling legal precedent in Pennsylvania for authentication of electronic communications.

The Koch Court addressed the authentication of cell phone text messages, noting the difficulty in establishing authorship of a text message or email. In Koch, the Court held that authentication of electronic communications requires more than confirmation that a number or address belongs to a particular person – circumstantial evidence is also required. 39 A.3d at 1005.

In Craft, the Court concluded that the authentication of social media evidence is to be evaluated on a case-by-case basis to determine whether there is an adequate foundation of relevance and authenticity. Further, the party seeking to introduce social media evidence must present direct or circumstantial evidence corroborating the author’s identity, such as testimony from the sender or receiver of the communication or contextual clues revealing the identity of the sender.

The full Craft opinion can be found here: https://law.justia.com/cases/pennsylvania/superior-court/2018/703-wda-2017.html

 

Social media has changed our everyday life. We wake up to breaking news via Twitter and go to sleep while scrolling our friends’ Facebook posts. As with all other aspects of life, social media has begun to influence litigation. But does a lawyer have any duty to advise clients on social media? According to the Pennsylvania Rules of Professional Conduct, the answer is yes.

Under Pennsylvania Rule of Professional Conduct 1.1, a lawyer is required to provide competent representation to a client, which requires legal knowledge, skill, thoroughness, and preparation. Further, Comment 8 to Pa.R.P.C. 1.1. provides that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law including the benefits and risks associated with relevant technology.”

Social media is an excellent, if not crucial tool, in many cases. People upload photographs, videos, and posts about virtually everything, often to their detriment. However, lawyers must tread a fine line in advising clients on social media. In July of 2014, the Professional Guidance Committee of the Philadelphia Bar Association issued the following opinion:

  1. A lawyer may advise a client to change the privacy settings on the client’s Facebook page.
  2. A lawyer may instruct a client to make information on the social media website “private,” but may not instruct or permit the client to delete/destroy a relevant photo, link, text or other comment, so that it no longer exists.
  3. A lawyer must obtain a copy of a photograph, link or other content posted by the client on the client’s Facebook page in order to comply with a Request for Production or other discovery request.
  4. A lawyer must make reasonable efforts to obtain a photograph, link, or other content about which the lawyer is aware if the lawyer knows or reasonably believes it has not been produced by the client.

Opinion 2014-5, Professional Guidance Committee of the Philadelphia Bar Association, July 2014.

It should be noted that while the above opinion focuses on Facebook, it was meant to apply to all social media, which would include Instagram, Twitter, Snap Chat, and other websites or apps.