Facebook Evidence Authentication: Another ‘Boring’ E-Disco Opinion (Part I)
Originally published in the The Legal Intelligencer, an ALM Media publication, on August 30, 2018.
By: Leonard Deutchman
Editor’s note: This is the first in a two-part series.
In my January and June 2018 columns, I wrote about how great it was to read boring e-discovery opinions. By “boring” opinions, I meant those which applied longstanding legal principals to cases that just happened to involve e-discovery, as opposed to the many, many opinions we have read over the last several years in which, because e-discovery involved technology that was new and, to many readers, baffling, spent more time wrestling with the technology (and often losing) than reasoning regarding the law. I am happy to say that in this month’s column, we will discuss a third such boring opinion.
In Commonwealth v. Mangel, 2018 Pa. Super. 57 (Pennsylvania Superior Court March 15, 2018), the Pennsylvania Superior Court affirmed the trial court’s order barring admission of evidence purportedly coming from the Facebook account of defendant Tyler Kristian Mangel, which evidence was offered to demonstrate that the defendants were the perpetrators of an assault of victim Nathan Cornell, at a graduation party. The court’s explanation as to why the evidence was inadmissible—because the commonwealth had failed to establish its authenticity—involves some technical discussion, but the great majority of the court’s opinion is not particularly technical, another indication that the courts and the bar are catching up to the changes brought on by the digital revolution.
The commonwealth of Pennsylvania appealed from the order denying its motion in limine to introduce Facebook posts and messages allegedly authored by defendant Mangel. The Superior Court affirmed.
The facts underlying the assault charges against defendants were that on June 26, 2016, victim Nathan Cornell was assaulted at a graduation party. On July 15, 2016, a criminal complaint was filed against Mangel, charging him with aggravated assault, simple assault and harassment of Cornell. The commonwealth filed a separate criminal complaint against Matthew Robert Craft, charging him with the same offenses. The criminal cases against Mangel and Craft were consolidated for trial.
Attached to the criminal complaints was an affidavit of probable cause, which indicated that Cornell had told police that “several fights ensued as a result of an undetermined amount of people arriving” at the party. Cornell had further stated that he was walking away from where these altercations were taking place when he was struck in the back of the head, knocked to the ground, and repeatedly kicked and punched by Mangel and Craft. Cornell clarified that while he did not know Mangel or Craft, nor had he been in contact with them during the course of the night, he was able to identify them as a result of being shown Facebook pictures by his family. Cornell “suffered facial lacerations, a broken maxilla bone, a broken nasal bone, and seven of his teeth were knocked out.”
On March 15, 2017, the trial court granted the commonwealth’s motion, filed that same day, for provider to provide subscriber Information, pursuant to 18 U.S.C. Section 2307(c) and 18 Pa.C.S.A. Section 5743(c) and (d), seeking to obtain Mangel’s Facebook records. At the time of jury selection, the commonwealth moved to introduce screenshots of certain pages of a Facebook account for a Tyler Mangel, consisting of undated online and mobile device “chat” messages. The commonwealth also sought to introduce a Facebook screenshot, posted by one “Justin Jay Sprejum Hunt,” of a photograph of purportedly bloody hands.
At the motion hearing, the commonwealth presented the testimony of Erie County Detective Anne Styn, whom the trial court qualified as an expert in computer forensics. Styn testified that she had received a request from the commonwealth to determine the owner of a particular Facebook account, bearing the name Tyler Mangel, and was provided with “Facebook screenshots captured from online, as well as mobile device chats” of that account taken by Pennsylvania State Police Trooper Schaeffer. Styn further testified that she “conducted a search on Facebook for the individual’s name, Tyler Mangel,” and found only one such name. She noted that the Facebook account she had located and the screenshots that she had received from the commonwealth both bore the name Tyler Mangel and listed the account holder as living in Meadville, Pennsylvania. As well, some of the photographs in the screenshots were the same as those in the Facebook account. She further testified that in the “about” section of the Facebook account located by her, the page indicated that the individual had attended Meadville High School, and that the username associated with the Facebook account was “Mangel17.”
Subscriber records from Facebook convinced Styn that the account was created by using the first name “Tyler” and the last name “Mangel,” and the registered email addresses of mangel17@facebook and email@example.com. The Facebook subscriber records also indicated that the Facebook account had been verified by the cellphone number. The results of a court order obtained by the detective for the Verizon subscriber records associated with that phone number identified the owner of the number as Stacy Mangel, residing at 10866 Pettis Road, Meadville, Pennsylvania. The trial court took judicial notice of the fact that this particular address was the same as the address listed in the criminal complaint filed against Mangel.
Styn further testified that the Facebook account that she had located “should be the same” as the account in the screenshots provided by the commonwealth because both accounts bore the name Tyler Mangel; listed the account holder as living in Meadville, Pennsylvania; listed the account holder as having attended Meadville High School; and displayed several photographs which seemed to be of the same individual. With regard to the screenshots of the mobile device chats that the commonwealth initially provided to her, she testified that “the Facebook name itself … and even the images on his Facebook page” added to her opinion that the chats came from Mangel. Detective Styn referred to a post by Tyler Mangel, in the screenshots provided by the commonwealth, stating “if all that you leave is a scratch you know you’re a bitch,” and opined that it appeared to refer “to an altercation that may or may not have happened.”
The defense objected when Styn was asked “what contextual clues she had found in the chats to indicate that they were from the same Facebook account.” The court questioned Styn as to whether her opinion would be “to a reasonable degree of computer and scientific certainty.” Her response was that her opinion would be based “off the records” which she “received from Facebook and Verizon.” The court questioned whether she could testify not that the account was under Mangel’s name, but that Mangel actually opened the account and posted the data at issue. She said she could not and so the court prevented her from offering her opinion. The defense followed up on this line of inquiry in cross-examination, when Styn testified that she did not obtain an “IP” address for the Facebook account she had located. An internet protocol or IP address is assigned to a computer or network either permanently or for a specific date and time, and so allows investigators to locate the records of assignation to identify what computer or network generated or posted a message, received a message, etc. Styn testified to much of this. Defense counsel then showed Styn his own cellphone, on which he had conducted a Facebook search for Tyler Mangel. The search resulted “in five accounts bearing that name, one of which listed Meadville, Pennsylvania, as the hometown.” Defense counsel took a screenshot of his Facebook search, which was admitted as an exhibit into evidence for the hearing. Additionally, the trial court admitted into evidence the screenshots taken by Styn of the homepage and “about” page of the Facebook account she had located for Tyler Mangel; the Facebook and Verizon subscriber records; and, the screenshots provided by the commonwealth to Styn of the online and mobile device chats on the Facebook account for Tyler Mangel located by Schaeffer. The court denied the commonwealth’s motion in limine and the commonwealth filed a joint notice of appeal.
On appeal, the commonwealth argued that the trial court erred: when it applied a “reasonable degree of scientific certainty” standard in determining whether the commonwealth provided adequate extrinsic evidence to support the authenticity of Facebook records; and, when it failed to apply a “preponderance of the evidence” standard in determining whether the commonwealth provided adequate extrinsic evidence to support the authenticity of the Facebook records. The commonwealth argued that the trial court “applied a considerably higher burden than was required by either the rules of evidence or controlling case law.” The commonwealth cited United States v. Browne, 834 F.3d 403 (3d Cir. 2016), wherein the U.S. Court of Appeals for the Third Circuit examined the issue of the authentication of social media evidence and applied the less stringent “preponderance of the evidence” standard for authentication of Facebook records.
The court noted that pursuant to Pennsylvania Rule of Evidence 901, to authenticate evidence and thus make it admissible, the proponent of the evidence must introduce sufficient evidence that the matter is what it purports to be. Testimony of a witness with personal knowledge that a matter is what it is claimed to be can be sufficient. Evidence that cannot be authenticated by a knowledgeable person may be authenticated by circumstantial evidence, which includes “distinctive characteristics and the like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”
In next week’s article, I’ll continue to discuss the legal issues as well as analyze the opinion.