Authenticating Social Media Evidence Is Harder Than Lawyers Think

Let’s play a game. You’re the judge. Under the following facts, is the social media evidence admissible?

After obtaining a Court Order allowing him to obtain a criminal defendant’s Facebook records, the prosecutor files a motion seeking permission to introduce into evidence the following items:

  1. Screenshots of the defendant’s Facebook account
  2. Various undated mobile and online “chat” messages
  3. A bloody hands photo posted by another individual

So, which items were admissible? Not which items should have been admissible?

The answer: None.

Why? Even social media obtained pursuant to a court order must be authenticated properly to be admitted into evidence. In other words, the prosecutor failed to establish sufficiently that the items were “connected” to the defendant even though the Facebook account in question bore the defendant’s name and other characteristics. The chat messages were excluded because they contained insufficient contextual clues establishing the defendant’s identity as the author to allow them in as evidence.

Pennsylvania Evidentiary Standards for Authenticating Electronic Data

The Superior Court, in Commonwealth v. Mangel, 2018 PA Super 57 (Pa. Super. Mar. 15, 2018), ruled that social media evidence authentication requires, at a minimum:

  1. An adequate foundational showing of its relevance and authenticity, and
  2. Direct or circumstantial evidence that tends to corroborate the identity of the author of the communication, such as testimony, or contextual clues in the communication tending to reveal the identity of the sender.
  3. The admissibility is to be evaluated on a case-by-case basis for an “adequate foundational showing of its relevance and authenticity.”

Direct Evidence such as electronic communications or documents require more than mere confirmation that the number or address belonged to a particular person to be authenticated and used in court.

Circumstantial evidence may include personal knowledge of participants, and verification to authenticate computerized instant messages, cell phone text messages, Facebook posts, and other contextual clues that tend to corroborate the identity of the sender to verify authorship.

So, was Mr. Mangel lucky that his Facebook chats were not admitted? Yes. But, why? Because the Commonwealth did not do its research and obtain corroborating data to authenticate the messages. In fact, no one testified about the veracity of the messages; thus, they were unverifiable.

Of note, as our office has explained to many clients, as well as lawyers attending continuing legal education programs where we speak, social media records and communications can be properly authenticated within the existing evidentiary rules. To authenticate social media chat messages or emails, the proponent (person offering the evidence) must present sufficient direct and circumstantial evidence to establish its authenticity, that the matter is what it purports to be, and/or testimony of a witness with personal knowledge. See Pennsylvania Rule of Evidence 901.

Plaintiffs Must Be Careful Using Social Media When Pursuing Injury Claims

According to recent surveys, two-thirds of all American adults use Facebook, with the majority using it on a daily basis. Social media platforms are ever-growing and changing, with 78% of people under the age of 24 now using Snapchat, and 71% using Instagram. Using these platforms to make statements or post photos has become second-nature for many, and you might not realize the risks of using social media if you are in the midst of a legal battle. If you are pursuing a legal claim, especially for personal injuries, workers’ compensation, or other claims involving physical and emotional injuries, you must be cautious when using social media. Any information that you post may be seen and requested by the other side, and even information you believe is private can be discoverable.

Recently, a Monroe County Court of Common Pleas Judge granted a defendant’s motion to compel discovery, including access to the plaintiff’s Instagram account, in a personal injury lawsuit. In that case, defense counsel offered publicly viewable posts from the plaintiff’s account that seemed to show physical activity inconsistent with her alleged injuries. The facts of that case are particularly interesting because while the plaintiff’s account was publicly viewable at the time of the offered posts, she had since changed her account to private. The Judge determined that full access to the account, which plaintiff had previously denied existed, was relevant to verifying the extent of her injuries and rehabilitation.

If you are in litigation or considering pursuing a claim for injuries, you should refrain from communicating about your case or disclosing anything on the internet or social media. While you do not need to stop using social media or the internet altogether, you must be very careful about what information, videos, photographs, and so on that you post online. Like the example above, photographs and other posts can be used by the other side to argue that your injuries have not prevented you from certain activities. In addition, embarrassing or profane materials could be used to try to attack your character.

We regularly represent injured persons, and we always advise our clients of the implications of social media use when pursuing claims for workers’ compensation or personal injury matters. If you have been injured in an auto accident, slip and fall, work-related, or other accident, call our office at 610-446-3457 to set up a consultation with our attorneys. We can guide you through the process, and advise you about what you should expect and consider when pursuing your claim.

 

Don’t let your claim turn into a pumpkin because you should have called a lawyer

The decision to file a lawsuit can be tricky. Generally, a person may only file a lawsuit within a limited time period, known as the statute of limitations. If you wait until the last minute, your claim might change from a lawsuit into a pumpkin on its way to the courthouse.

For the following personal injury claims, the statute of limitations is two years: Negligence, Toxic Tort, Wrongful Death, Medical Malpractice, Products Liability, and Fraud. See 42 Pa. C. S. § 5524. This time limit begins to run on the date the injury occurred.

A lawyer can help you determine whether an exception applies. Exceptions have applied when an injury is not discovered until much later or could not be discovered until more than two years after the act that caused the harm. But in most cases, the statute of limitations for personal injury claims is two years, and you shouldn’t assume it’s longer.

A lawyer can also investigate the claims and explain the likelihood of success before being hurled into protracted litigation.

So talk to a lawyer about your case.

When you retain our law firm:

  1. We investigate your claim
  2. We evaluate the case in a holistic manner
  3. We prepare the most effective complaint possible
  4. We consider all of the potential claims
  5. We have time to address any procedural questions
  6. We make informed decisions that lead you to a successful result.

We believe it is best to retain a lawyer as soon as possible to discuss your claim. Contact a lawyer at the Law Offices of Daniel J. Siegel, LLC at 610-446-3457 for a free consultation.

 

Havertown Law Offices of Daniel J. Siegel, LLC Voted #1 Personal Injury Firm in Delaware County by Delaware County Daily Times Readers

The Havertown Law Offices of Daniel J. Siegel, LLC has been voted the #1 Personal Injury Firm in Delaware County by Delaware County Daily Times readers.

We are proud of our tradition of representing clients in an affordable client-focused manner since 2005 in:

  • Workers’ compensation claims
  • Auto, bus and truck accident claims
  • Slip and fall claims
  • Social Security Disability claims
  • And other personal injury matters

Thank you to our friends, clients, neighbors, referral attorneys and other lawyers for voting for our office! We are also proud to be recognized by our peers in Super Lawyers, and that our firm is listed in Best Lawyers in America.

Our staff, Daniel J. Siegel, Esquire, Nicole A. Kratzer, Esquire, Pamela A. Myers and Lindsey E. Wilkinson, look forward to continuing to represent our friends, neighbors & colleagues throughout Delaware County and the Philadelphia area!

So, you need a lawyer and don’t know how to find one.

So, you need a lawyer and don’t know how to find one. What do you do? You could call a friend to see who she hired. Or, you could call a lawyer who represented you in the past to see if he can handle your matter or refer you to someone who can. Or, you could merely hire someone who runs TV ads, has billboards or has local celebrities shilling for him. After all, if you order a Big Mac because it’s on a billboard, why not hire your lawyer for the same reason?

Because there’s a difference.

If you don’t like the Big Mac, you’re out a few dollars. But if you hire a lawyer because a radio host says the lawyer is a friend – even though he potentially has no clue whether the lawyer actually is good, great, or terrible – you might end up like many of the people who call our office. They went to one of the firms that spend zillions on advertising, got shuffled from one legal assistant to another, and never knew which attorney would show up for any given hearing. And then lost their cases.

They call us, and lo and behold, we discover that the case should have been handled differently. Or that the case should have settled for more, but the lawyer handling the case needed to pay his advertising bill.

Pennsylvania lawyers are required to attend 12 hours of continuing legal education each year. On March 22nd, the Pennsylvania Supreme Court issued the list of attorneys administratively suspended because they didn’t have the time to meet that basic 12-hour requirement. Some of these “big name” lawyers made that list because they had so little regard for their obligations.

So, you need a lawyer and don’t know how to find one. Hopefully, you now realize that hiring a lawyer is different from ordering a burger.

Ask yourself, how seriously will they regard their obligations to you if they can’t even bother to spend less than two days taking the courses designed to keep them up-to-date on the law that impacts you – their clients? Is that the kind of person you want representing you?

You will never find anyone from our firm on that ignominious list. Why? We want to learn about current and cutting edge legal issues, and we are a firm that teaches the courses that other lawyers are required to attend. In 2017 alone, Havertown Attorney Dan Siegel taught dozens of CLE courses, was on the Board of Directors of the Pennsylvania Bar Institute, the continuing legal education arm of the Pennsylvania Bar Association, and has just been appointed Chair of the American Bar Association Law Practice Division’s Continuing Legal Education Board.

So, the next time you need a lawyer to handle your personal injury or workers’ compensation claim, skip the billboards and ask a friend or lawyer you trust. And if you don’t find someone, then hire the lawyers who are leaders not only in the courtroom but also in the rooms where lawyers learn from the experts.

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