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

240 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
4. Importance of proper authentication
The importance of corroborative evidence and proper authentication
should not be understated. Basic content such as a photograph of an
accused or a basic profile are insufficient; they leave the door open for
reasonable doubt. In the US, a number of cases have been overturned
because of the role speculation played.
In Griffin v State, the Maryland Court of Appeal overturned a murder
conviction because a trial court allowed a MySpace account to be admitted
without authenticating it. 74 The lead investigator printed out a copy of the
profile that they assumed belonged to the girlfriend of the suspect and
tried to use the photo of the girlfriend and her birth date as
authentication. The court ruled that the police should have attempted to
introduce more confirming evidence such as cookies or physical
authentication.
Shared computers can also raise problems. In R v Johnson, 75 the
Ontario Superior Court found the accused not guilty of sexual trafficking
in part because there were questions about whether it was the accused or
his girlfriend who was accessing and posting to a Facebook account. In any
case where key evidence exists as a result of online activities, law
enforcement will need to collect sufficient evidence to infer that the
accused was in fact the user of the computer. Many web browsers save
passwords on a computer so that anyone with physical access to a
computer may log onto an account and make posts without the consent of
the user. This is particularly problematic in offices, where a computer may
be in an unsecure environment, or in a residence, where parents,
roommates or children may have access to the same computer.
Where possible, enough confirming evidence should be gathered to
ensure the judge or jury can infer that there is no reasonable doubt or
alternative explanation as to who created or used a particular social
networking account.
5. Determining admissibility
When a criminal court is dealing with social networking evidence,
they are primarily dealing with either incriminating statements or with
photographs that reveal some insight into the crime. With the
74
Griffin v State, 19 A (3d) 415 (Md App 2011).
75
R v Johnson, 2011 ONSC 195 (available on WL Can).