Social Incrimination Paper
Dr. Bryan Schwartz and I prepared this paper originally in 2011, where a slightly longer paper was presented to Manitoba's Crown Defence Conference. This modified version was published in 2012 in the Manitoba Law Journal (36 Man. L.J. 221). While the law is constantly evolving and recent developments should be taken into account, this piece provides a broad survey of how various evidence was being used and some of the issues courts in Canada and the U.S considered.
A modern obsession with sharing personal thoughts and photographs with online acquaintances has led to incriminating statements and embarrassing photographs proving probative or undermining the credibility of witnesses and litigants in a wide range of cases. As a result, courts across North America are revising and reinterpreting their evidentiary rules to handle evidence gathered from social networking websites.
This paper takes a comprehensive look at a wide variety of evidentiary issues, procedural rules and examples of social networking evidence used in criminal and civil cases in both Canada and the United States. Part II briefly introduces the major social networks and examines their use by courts. Part III addresses some of the general statutes which deal with investigators’ and courts’ access to social networking evidence. Part IV examines the acquisition and use of social networking evidence in the criminal context, including the importance and difficulties of authenticating evidence and the various ways in which courts have reviewed evidence to prevent prejudice. Part V examines the implications of social networking evidence in civil cases, particularly how litigants use court processes to discover information about their adversaries. This can range from uncovering unknown online defamers, to forcing the revelation of pictures or posts from a private section of a social network account. Lastly, we look at how civil courts deal with balancing privacy concerns with the broader obligation to disclose relevant material.