CLE – Continuing Legal Education Program

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.

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The Protz Impact

Ever since the Pennsylvania Supreme Court declared in Protz v. WCAB that the Impairment Rating Evaluation provisions of the Pennsylvania Workers’ Compensation Act are unconstitutional, my office has been deluged with calls asking how the decision impacts injured workers and how other lawyers should handle their existing cases. These calls have come because we regularly represent injured workers in workers’ compensation claims, because we regularly write briefs and handle appeals for other lawyers in workers’ compensation and other matters, and because we authored the Amicus Curiae (friend of the court) brief for the Pennsylvania Association for Justice (PAJ). Because the Supreme Court did not state how the decision applies to current claims, we are left to predict the results of future cases.

The PAJ will be sponsoring a webinar, “Forward to the Past: Protz and the Elimination of the IRE,” on Wednesday, August 9, 2017 from 12 to 1 p.m. I will be join Tom Baumann, counsel for Mr. Protz, and Larry Chaban, one of the deans of the claimant’s workers’ compensation bar, on the panel. Click here to register for the program.

And finally, thank you to one attorney who read my brief and offered the following observation:

A note to compliment you on your outstanding, world class writing style with your Protz Amicus Brief.

I enjoyed my 20 years of Claimant practice in Blair County, handling over 1000 cases and reading dozens of briefs (and case decisions) over the years. In reviewing your recent brief which lead to a landmark Pa Supreme Court decision - Wow... articulate, well reasoned, well organized, persuasive...it's the Super Bowl of them all!

Me? ... [I] still peruse the workers comp literature when I noticed your written gem.

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CLE on February 15th: “Help! They’re Changing the Rules & They Impact Everything Filed in a Pennsylvania Court!”

Havertown Attorney Dan Siegel will present his latest continuing legal education course, “Help! They’re Changing the Rules & They Impact Everything Filed in a Pennsylvania Court!” on Wednesday, February 15, 2017 from 12:30 to 1:30 p.m. at the Delaware County Bar Association in Media, Pa. Click here for more information – http://www.delcobar.org/events/EventDetails.aspx?id=922395.

In the program, Dan will discuss the new Pennsylvania Public Access Policy, which goes into effect in January 2018. The new policy will impact every lawyer who files documents with any Pennsylvania court, and requires that confidential and sensitive information be redacted. For many law firms, the policy will require significant changes in how they handle court filngs. Dan discussed the new policy in his recent column in the Legal Intelligencer. Click here to read the column.

 

 

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Learn About Social Security Disability – Dan Siegel to Speak at Delaware County Bar on August 31st

The Social Security Administration pays disability benefits through two programs: the Social Security disability insurance (SSDI) program and the Supplemental Security Income (SSI) program. Benefits received through these programs may be relevant to personal injury, workers’ compensation, family law and other matters.

Attorneys often overlook the importance and impact of Social Security Disability benefits on their clients’ cases. To help attorneys assist their clients, Dan Siegel will discuss “Social Security Disability for Non-Social Security Disability Attorneys” on Thursday, August 31, 2016 from 12:30 to 1:30 p.m. at the Delaware County Bar Association  in Media. This CLE, on the final day of the August compliance period, will provide an overview of the Social Security Disability/SSI claims process, explain how clients can receive benefits, and answer common questions about the SS system.

Click here for more information about the program.

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Need CLE Credits? Consider Dan Siegel’s Upcoming Course on Dealing with Client Reviews

Dan Siegel teaches numerous continuing legal education courses, each with a practical “information you can use” approach.  Dan’s next course is Bad Review + Bad Response = Good Way to Have an Ethical Problem, on Wednesday, August 17, 2016 at 10:15 a.m.  The program is one of many CLE programs at the Bucks County Bar Association’s “August Marathon CLE Day” in Doylestown. The course will discuss”

    • Whether you choose to be online or not, your clients will write reviews. Unfortunately, angry clients are more likely to write about you than happy clients.  This program will: (1) Explore he practical issues surrounding getting good reviews ; (2) Offer ways to monitor your     reputation; and (3) Address the ethical implications about dealing with reviews.
    • Click here for more information and to register.

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Next Week – April 7th – CLE- Workers’ Compensation for Non-Workers’ Compensation Lawyers – With A Free Copy of Dan Siegel’s Book

REMINDER: On Thursday, April 7, 2016 at 12:30 p.m. I will present my program, “Workers’ Compensation for Non-Workers’ Compensation Lawyers” at the Delaware County Bar Association Headquarters in Media. All paid attendees will receive a complimentary copy of my book, Pennsylvania Workers’ Compensation Law: The Basics: A Primer for Lawyers, Workers, Medical Professionals & Others, a $49.95 value. The book is the only resource that also includes a complete copy of the Pennsylvania Workers’ Compensation Act and its regulations.

The Pennsylvania Workers’ Compensation Act is lengthy, complex and confusing. In addition, lawyers who do not regularly handle workers’ compensation claims – including attorneys who represents clients in criminal, family, bankruptcy, Social Security and personal injury matters – need to know the basics in order to provide better legal assistance to their clients. In this program, I will help lawyers, as well as employers, medical providers, insurance carriers and others, to understand the basics of Pennsylvania law.

REGISTRATION & LUNCH: 12:00 p.m. – 12:30 p.m.
SEMINAR TIME: 12:30 p.m. – 1:30 p.m.
COST: $35.00 for DCBA Members; $45.00 for Non-Members; WORTH: 1.0 Substantive CLE Credit Hour

Click here to register for the program.

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CLE- Workers’ Compensation for Non-Workers’ Compensation Lawyers – With A Free Copy of Dan Siegel’s Book

On Thursday, April 7, 2016 at 12:30 p.m. I will present my program, “Workers’ Compensation for Non-Workers’ Compensation Lawyers” at the Delaware County Bar Association Headquarters in Media. All paid attendees will receive a complimentary copy of my book, Pennsylvania Workers’ Compensation Law: The Basics: A Primer for Lawyers, Workers, Medical Professionals & Others, a $49.95 value. The book is the only resource that also includes a complete copy of the Pennsylvania Workers’ Compensation Act and its regulations.

The Pennsylvania Workers’ Compensation Act is lengthy, complex and confusing. In addition, lawyers who do not regularly handle workers’ compensation claims – including attorneys who represents clients in criminal, family, bankruptcy, Social Security and personal injury matters – need to know the basics in order to provide better legal assistance to their clients. In this program, I will help lawyers, as well as employers, medical providers, insurance carriers and others, to understand the basics of Pennsylvania law.

REGISTRATION & LUNCH: 12:00 p.m. – 12:30 p.m.
SEMINAR TIME: 12:30 p.m. – 1:30 p.m.
COST: $35.00 for DCBA Members; $45.00 for Non-Members; WORTH: 1.0 Substantive CLE Credit Hour

Click here to register for the program.

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Webinar – Changing Law Firms: Ethical Guidance for Pennsylvania Law Firms and Attorneys

Next Tuesday, August 18th, at 12 noon, I will present a webinar, Changing Law Firms: Ethical Guidance for Pennsylvania Law Firms and Attorneys, based on my ethics book of the same title.

The program will address:

  • General Legal Principles Every Lawyer Should Know
  • General Ethical Considerations Every Lawyer Should Know
  • Deciding Whether to Leave
  • What to Do During the Transition
  • What to Do After Departure
  • What You Should and Shouldn’t Say and Do
  • The Relevant Rules of Professional Conduct
  • Applicable Ethical Guidance Opinions

For more information, or to register, go to http://pbi.peachnewmedia.com/store/seminar/seminar.php?seminar=45757.

 

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Attorney Daniel J. Siegel To Moderate Ethics Program For Pa. Workers Comp Attorneys

Havertown-based attorney Daniel J. Siegel will speak on “The Ethics of Lawyer Advertising Today” at the annual fall meeting of the Pennsylvania Bar Association Workers’ Compensation Section, hosted by the Pennsylvania Bar Institute on September 11 and 12 at the Hershey Lodge and Convention Center in Hershey, Pa.

Attorney Siegel, author of the books, Pennsylvania Workers’ Compensation Law: The Basics: A Primer for New Lawyers, General Practitioners & Others,  and Changing Law Firms: Ethical Guidance for Pennsylvania Law Firms and Attorneys, will moderate a session about issues lawyers face staying competitive and professional in an age of social media and extensive advertising by law firms.

Attorney Siegel regularly represents injured workers and also provides ethical guidance to attorneys. Thus, this program highlights both aspects of his practice.

Recent Programs

Siegel has also recently lectured at the following programs:

  • “How to Do 90 Minutes of Legal Work in 60 Minutes,”presented to the Delaware County Bar Association on August 29, 2014
  • “How to Use Dropbox Securely,” a webinar presented by the American Law Institute and the American Bar Association Law Practice Division on August 25, 2014
  • “How Technology Can Get You Into Trouble,” presented at the program, CLE Down the Shore, sponsored by thePennsylvania Bar Institute on August 14, 2014 in Atlantic City
  • “How Lawyers Use Cloud Computing,” presented at the program, Cloud Computing, sponsored by thePennsylvania Bar Institute on August 8, 2014 in Philadelphia
  • “Why Should I Care About E-Discovery and Social Media?” presented at Pennsylvania Bar Association Young Lawyers Division Summer Meeting and New Admittee Conference, on August 2, 2014 in State College
  • “Social Media & Ethics,” presented to the City of Philadelphia Law Department, on July 29, 2014 in Philadelphia

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If You Use Gmail or AOL, Are Licensing Away Your Client Data?

Attorney Daniel J. Siegel, Esquire, of the Law Offices of Daniel J. Siegel, LLC and Integrated Technology Services, LLC, is presenting a webinar, “In the Cloud: How to Preserve Confidentiality,” on Monday, February 24, 2014 from 12 noon to 1 p.m. The program is sponsored by the Pennsylvania Bar Institute.

The webinar will address issues that impact many attorneys, especially those who operate solo or small firms. After all, whether it’s your email, Dropbox, or some other method, you are probably using the cloud to store client information. But how safe and secure is the cloud? Are you doing enough?

Remember, Big Brother is reading your email. He’s sharing it with business associates. And these guys don’t care about confidentiality. Hear from attorney Daniel J. Siegel, Esq., as he explores the ramifications of email and cloud privacy on attorney-client interactions.

Review your ethical obligations to your client

  • Follow the evolution of ethics opinions
  • Review the Rules of Professional Conduct governing client confidentiality
  • Learn how to warn your client of the risks involved with email

Beware the dangers of unprotected email

  • Get familiar with terms of usage for Gmail, AOL, the iPhone and other public providers
  • Spot where and how providers can breach confidentiality
  • Identify risks that exist even for firms with their own domains

Click here to sign up for the program.

 

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