PA Update – Commonwealth vs. Jackson, 2022 Pa. Super 156 (Pa. Super. September 13, 2022)
Under Pennsylvania Rule of Evidence 901, the proponent of digital evidence must produce sufficient evidence to support a finding that a particular person or entity was the author. The proponent is not required to prove no one else could be the author.
A recent criminal court case is providing law which could become pertinent and useful in civil and criminal litigation matters. The Defendant, Khalid Jackson was found guilty of first degree murder and sentenced to life in prison. Jackson then filed an appeal where he argued the trial court errored in admitting evidence of social media accounts where the Commonwealth failed to authenticate the content under Pa. R.E. 901(b)(11). Jackson claimed the circumstantial evidence of ownership of the accounts or authorship of the post presented by the Commonwealth did not satisfy the admissibility requirements under Rule 901 and as a result, he was prejudice by the admission of that social media evidence at trial. Pennsylvania Rule of Evidence 901 governs the authentication of evidence, requiring authentication prior to the admission of an electronic evidence. Commonwealth v. Murray, 174 A.3d 1147, 1157 (Pa. Super. 2017).
Pennsylvania Rule of Evidence 901 was amended prior to Jackson’s trial to address digital evidence, including social media posts. Pa. R.E.901(b)(11) & cmt. The amendment itself became effective on October 1, 2020. This section provides as follows: (11) Digital Evidence. To connect digital evidence with a person or entity: (A) direct evidence such as testimony of a person with personal knowledge; or (B) circumstantial evidence such as: (i) identifying content; or (ii) proof of ownership, possession, control or access to a device or account at the relevant time when corroborated by circumstances indicating authorship. Comments to Rule 901 note that circumstantial evidence of ownership, possession, control or access to a device or account alone is insufficient for authentication but such evidence maybe enough in combination with other evidence of the author’s identity.
The Court noted that they had recognized social media evidence presents challenges for authentication because of the ease which social media account may be falsified, or a legitimate account may be accessed by an impostor. The Court went on to indicate that they adhere to the same standards of authentication for social media accounts as with text messages and instant messages. Commonwealth vs. Mosley, 114 A.3d 1072, 1081-82 (Pa. Super. 2015).
At trial, the prosecution presented evidence the Defendant went by the nicknames JackBoy and Boosie. They introduced those names on numerous accounts. Then they introduced the biographical section of all those accounts which were similar to each other and the account contained a pin drop location where the Defendant was photographed at times. The Commonwealth established that both accounts featured pictures of the Defendant taken by both himself and others. Finally, the Commonwealth pointed out that information contained in two of the accounts was consistent with information presented on a third account which the Defendant admitted he owned and controlled.
In its opinion, the Court noted the similarities amongst the three accounts, including the one account which the Defendant claimed ownership and control of. The Court noted all three accounts featured photographs of the Defendant as the profile picture, contained numerous other photographs of the Defendant and had substantially similar bios and featured identical nicknames, hashtags, locations and statements. The Court held the trial court had properly authenticated the social media accounts based upon substantial circumstantial evidence linking the accounts to the Defendant. Thus, the trial court was found not to have abused its discretion and the Defendant was entitled to no relief.
