Published: 16.08.2018 15:24

Social media criminal trials

«Social media criminal trials» in pictures.

Social Media, a Trove of Clues and Confessions - The New York

It may be a morally questionable line of defence to some, but it is also a prime example of the increasing use of social media as a defence tool in criminal trials. In recent years Facebook and its equivalents have become an invaluable source for lawyers who are coming to realise that a few indiscreet photos or ill-advised status updates can often be enough to put some doubt into a jury’s mind about a witness’s evidence.

Social media and crime: the good, the bad and the ugly

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SCL: Social Media Control: Criminal Trial

Finally, even assuming the Tweets in question were public, Twitter argued that the government still requires a search warrant under the Federal and New York constitutions. 98 Notwithstanding Twitter's pending appeal, Twitter complied with a court order requiring it to promptly submit the Defendant's Tweets under seal. 99

Most people use social media in their everyday lives. 96 percent of today's online adults use social media regularly, and “[s]ocial networking continues to reign as the top online activity.” 6

This is one of many recent cases where social media evidence was used to identify suspects and/or witnesses. In Bradley, the victim of an armed robbery identified his assailants through publically available Facebook photos. In its opinion denying Bradley’s appeal, the Texas appellate court pointedly noted that “Vast online photo databases—like Facebook—and relatively easy access to them will undoubtedly play an ever-increasing role in identifying and prosecuting suspects.”

In fact, the general response of social media companies, until recently at least, was to delete offensive material posted online rather than take investigations any further. This not only fails to tackle the roots of criminal activity, including child porn or the crimes described above, but it also can destroy crucial evidence. This is beginning to change: both Twitter and Facebook have developed links with child protection services to better tackle child abuse and pornography perpetrated online.

There is a public misconception that the internet is somehow a free speech zone to which the criminal and civil law does not apply. That is being corrected.

Leslie Ellis makes a similar point in Friend or Foe? Social Media, the Jury and You. Ellis says that lawyers should attempt to identify the social media accounts of jurors and study their public posts, making sure the person they find online is the same individual in the courtroom. She suggests incorporating knowledge gleaned from their social media posts into voir dire. Ellis also cautions attorneys to remember not to commit any ethical violations in this process, such as using a fake identity or getting a third party to access the person's restricted pages.

Judges, solicitors and victims’ groups are being asked to submit evidence about the impact of social media on criminal trials.

But legal scholars, judges and ethicists say that social media is also creating a range of new challenges for law enforcement. In some cases, the flood of digital information has overwhelmed investigators. False tips, now easier to submit anonymously, send the police on more wild goose chases. Meanwhile, these new types of evidence are forcing judges to make tough calls about how best to ensure impartiality and what limits to put on jurors’ free speech rights.