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

Social Incrimination 243
used to rebut the credibility of an accused if they choose to testify. 87 For
example, in R v Telford, 88 an accused man’s Facebook message to his
girlfriend, “I bet you don’t want me to see you again,” was used to
challenge the credibility of his version of events in which he denied
assaulting her. Furthermore, some courts in the US have allowed evidence
that is highly prejudicial, and otherwise inadmissible, when a defendant
testifies about their own character. In Hall v State, 89 the court allowed the
prosecution to question a woman charged with obstructing justice about
her Facebook profile. She claimed she was an unwilling participant in
disposing a body and the prosecution pointed out that she listed a number
of horror movies and novels amongst her interests and that her summer
plans included, “I should really be more of a horrific person. It’s in the
works.”[sic] 90 Likewise, a court in Indiana allowed the prosecution to
question a father who was accused of murdering his child on statements
made on his MySpace profile. 91 In those statements, he claimed to be an
outlaw who was able to “do it and get away”. The father, who admitted to
violently assaulting his daughter, attempted to claim on the stand that he
was reckless and should be tried with manslaughter instead of murder.
The court found that since the father made his character a central issue by
testifying, evidence of his past statements on his profile were admissible,
whereas evidence of past criminal actions would not have been.
7. Probative value versus prejudicial effect
For courts determining whether to admit potentially incriminating
social network evidence, one of the central concerns is ensuring that
inflammatory material with little relation to the matter at hand is not
considered. The judge must decide whether material genuinely is
probative, and whether it will potentially introduce prejudice. Fairness and
integrity of the legal system require that sufficient proof be presented and
necessitates that immature statements or inappropriate pictures do not
create any preconceptions of guilt. Even in a case tried without a jury, the
87
Paul Atkinson, Proof: Canadian Rules of Evidence (Markham, Ont: LexisNexis, 2007) at
64.
88
R v Telford, 2009 ONCJ 174 (available on WL Can).
89
Hall v State, 283 SW (3d) 137 (Tex App-Austin 2009).
90
Ibid at 149.
91
Clark v State, 915 NE (2d) 126 (Ind SC 2009).