In a recent opinion on March 15, 2018, the Pennsylvania Superior Court issued a statement about the use of social media evidence in court cases. The relevant case, Commonwealth v. Mangel, was a criminal case; however, the implications can be applied to civil cases related to personal injury as well. In fact, many courts and state legislatures are addressing the use of social media evidence in court.

On a typical day, the average person might not consider their Facebook, Instagram, or Twitter privacy settings. Yet, the days following an accident in which someone is injured are hardly typical. The privacy on their social medial profiles may become important because it’s becoming increasingly common for personal injury defendants to use social media evidence in Illinois courts to deny or limit their liability. In most cases, social media evidence is allowed. However, there are ways for plaintiffs in personal injury cases to fight back and attempt to limit the social media evidence used against them.

What Happened in Commonwealth v. Mangel?

In Mangel, a three-judge panel for the Pennslyvania Superior Court unanimously affirmed the decision of the trial court which denied a criminal prosecutor’s motion in limine to introduce evidence from social media allegedly authored by the defendant, Tyler Mangel. The judges opined that the information identifying the defendant was not enough to allow the Facebook posts as evidence. Senior Judge John L. Musmanno stated that it is too easy to falsify accounts and posts on social media. There is a high standard of authentication for social media evidence.

The evidence prosecutors attempted to submit involved a picture of bloody hands posted to Facebook and sent through mobile chat messages. They alleged that Mangel, who was charged with aggravated assault, simple assault, and harassment, had authored those posts and sent those messages.

Anyone wishing to use social media evidence in a case must present direct or circumstantial evidence that corroborates the identity of the author. Testimony from the person who sent or received communication would be acceptable. Contextual clues would also be relevant. In Mangel’s case, the Erie County Detective testified that she could not say with a reasonable degree of computer and scientific certainty that Mangel had authored the posts and messages. In response, the court denied admission of the evidence.

Mangel’s case required a degree of certainty that the social media evidence being submitted was authored by the defendant. This would apply to any cases where social media evidence is being admitted. Although each state may apply its own test, the requirement to authenticate posts and messages is uniform.

Personal Injury Defendants’ Use of Social Medical Evidence

Following an accident, an injured party may post about what happened and their injuries on their social media accounts. This is often the fastest way to update family members and friends living cross the country and world. It seems convenient and harmless. However, an injured party’s updates may become a problem when their social media posts provide insight into their physical and psychological condition.

Content regarding their injuries, medical treatment, abili-ties, pain, and activities may be used against them in court. The defendant may seek to admit into court the plaintiff’s photos, videos, snaps, statuses, comments, and more to prove:

• The plaintiff is not suffering from certain injuries they claim in the lawsuit,
• The plaintiff’s injuries are not as serious as they claim, and/or
• The plaintiff’s life and wellbeing have not been as negatively affected by the injuries as they assert.

How the Stored Communications Act Impacts Social Media Evidence

The Stored Communications Act (SCA), 18 USC Sec. 2707-2711, is part of the Electronic Communications Privacy Act, enacted in 1986. The goal of Congress with the SCA was to address the fact that “the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address.” Primarily, the law addresses situations in which electronic data service and storage providers may disclose customers’ data. It presents a personal right or privilege to internet users regarding stored emails and other electronically stored data. Facebook, Instagram, and others do qualify as electronic communications service providers, as they enable users to send or receive wire or electronic communications. The SCA basically addresses when these social media companies may disclose personal data that is stored on their websites.

A person typically has no recourse against a subpoena for information in a personal injury case unless it violates a personal right or privilege. However, under the SCA, a person does have a right or privilege to certain stored information on social media sites. In most court cases, the courts have held that internet service providers and social media websites should not produce posts and other electronic data in response to a civil subpoena, which would be produced in an personal injury case.

However, such a subpoena may be honored under the Federal Rules of Civil Procedure Rule 34. Rule 34 addresses requests for production of documents, electronically stored information, tangible things, and more. The plaintiff may object to such a request, but many courts have found that relevant requests are valid. Rule 34 also generally permits requests for other personal information, such as bank account documents, school records, and more.

Challenging Social Media Evidence

No aspect of social media content makes it inherently inadmissible in court. Electronic information is generally admissible unless it does not meet all of the requirements stated within the Rules of Evidence.

The defendant in a personal injury case may use social media content as evidence if such content is relevant; the content’s probative value is not outweighed by unfair prejudice, confusion, or undue delay; the content can be authenticated; the content is not hearsay; the content either is not a duplicate or falls into an exception under the Best Evidence Rule; and the content was obtained lawfully.

When the defendant in a personal injury matter wishes to put forth social media evidence to deny their liability or to reduce the plaintiff’s financial recovery, there are many potential ways to fight for the evidence to be excluded. The plaintiff’s lawyer may argue it was obtained illegally or does not fulfill one or more evidentiary rules. A common defense is based on authentication.

Courts across the country have grappled with the issue of how social media evidence should be authenticated. Various courts have come to different conclusions. The National Attorneys General Training & Research Institute (NAGTRI) reported three standards have been applied across the nation. How a plaintiff’s attorney argues against the admittance of social media evidence depends on how the jurisdiction requires social medial content to be authenticated.

Writing for NAGTRI, John T. Lee, Senior Assistant Attorney General, and Kevin E. McReynolds, Assistant Attorney General, both of the Colorado Attorney General’s Office, found the three social media authentication standards as of 2017 were:

• • The Reasonable Juror Standard

A majority of courts have decided social media content does not require an authentication standard beyond what would be used for traditional “hard copy” evidence. A party only has to present enough evidence to enable a reasonable juror to conclude the evidence is what the party claims it to be. This is also known as the “Texas standard” since it was outlined in Tiende v. State of Texas (2012), however it has been discussed and applied in many courts.

• • The Reasonable Juror-Plus Standard

Lee and McReynolds determined several courts around the U.S. have used a standard slightly higher than the reasonable juror. In addition to baseline circumstantial evidence proving the evidence is what the party says it is, a court may require a little more. The court may expect additional evidence corroborating that the social media evidence is genuine.

Illinois specifically addressed the issue of social media authentication in People of Illinois v. Kent in June 2017. The Illinois Appellate Court stated that for a party to authenticate a Facebook post, it must provide evidence sufficient to allow a reasonable juror to find the evidence is what the party claims it to be.

For Illinois personal injury attorneys, the Reasonable Juror Standard is a relatively low bar, potentially making it tough to challenge the admittance of social media evidence. This court decision increases the importance of attorneys advising their clients on how to use—and not use—social media after an accident.

• • The Exclusionary Fact Standard

This is the highest bar for social media authentication, and it was first solidified by the Maryland Supreme Court in Griffin v. State of Maryland (2011). The court determined evidence from a social networking site required a greater degree of authentication. The court insisted the party prove no one else was the author of the content.

Social Media Evidence Should Be Scrutinized

In personal injury cases, social media evidence should be heavily scrutinized. Like the Pennsylvania Superior Court mentioned this year, it is easy to falsify such evidence. It is important to work with experts who can validate posts and messages that originate on social media accounts. If there is any question about the authorship, that evidence should be excluded.

While Congress put limits on electronic data sharing with the SCA, Rules of Evidence do allow revelation of social media posts that are relevant and authentic. This may be detrimental to either side in a personal injury case. Attorneys and their clients should carefully monitor their accounts to ensure privacy is maintained.

Jared Staver, of Staver Law Group, is a personal injury lawyer in Chicago, IL with nearly 20 years of experience within the Illinois legal system. Jared focuses primarily on injuries caused by car accidents, truck accidents, and many other personal injury cases.

Suggested citation: Jared Staver, Beaten by Social Media: Certainty and Social Media Evidence, JURIST – Professional Commentary, Jun. 19, 2018, http://jurist.org/hotline/2018/06/jared-staver-personal-socialmedia.php.

This article was prepared for publication by Kelly Cullen, the JURIST Managing Editor. Please direct any questions or comments to him at managingeditor@jurist.org