MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Social Incrimination 239
arrest when they knew the accused was logged into the account while at
work. 69
Content-based authentication relies on the specific content of an
account or message for personal details or language that may be distinct to
a suspect. This can be a highly subjective process and should be used with
care. Morris J of a Texas appeal court discussed it in Tienda v State:
The inherent nature of social networking websites encourages members who
choose to use pseudonyms to identify themselves by posting profile pictures or
descriptions of their physical appearances, personal backgrounds, and lifestyles.
This type of individualization is significant in authenticating a particular profile
page as having been created by the person depicted in it. The more particular
and individualized the information, the greater the support for a reasonable
juror's finding that the person depicted supplied the information. 70
The court found that references to events surrounding a murder and posts
describing the accused being put on an electronic monitoring program
provided sufficient information for a jury to decide whether the account
belonged to the accused.
The presence of information that could be known only to the accused
or victim may be sufficient to at least provide authentication of evidence
for the purpose of admissibility. The trier of fact will still need to decide
whether this is conclusive. A number of opinions demonstrate how courts
have admitted evidence based on distinctive circumstantial details. In
People v Fielding, 71 the court found that chat transcripts containing
information the accused and victim discussed in person provided
sufficient proximity to allow the transcripts to be introduced. Any alleged
discrepancies were to go to the weight, or importance, placed on them. In
People v Goins, 72 the appeals court found the trial judge wrongly excluded a
MySpace page that could only have been known to the victim and accused.
The defendant had wished to introduce it and the appeals court
recognized that it contained “descriptive details of the assault that fit
within what a reasonable person would consider to be distinctive
content.” 73
69
R v McCall, 2011 BCPC 7 at 13 (available on WL Can).
70
Tienda v State, 2010 WL 5129722 (Tex App-Dallas) at 5.
71
People v Fielding, 2010 WL 2473344 (Cal App 3 Dist).
72
People v Goins, 2010 WL 199602 (Mich App).
73
Ibid at 2.