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

244 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
judge should avoid any misleading character evidence unless it is deemed
essential to the facts of the case. This is important based on the nature of
social networking.
Users of Facebook or MySpace often engage in behaviour that may be
considered ridiculous by traditional societal standards: posting lewd
pictures, bragging about how intoxicated an individual has become,
making generally impulsive statements, or even making false or highly
exaggerated claims regarding their behaviour. However, with the exception
of some family law cases where one’s behaviour may be applicable to their
ability to raise children, it is generally not the court or jury’s role to
become the judge of appropriate taste.
When admitting social networking profiles and pages, a judge may
determine that to maintain fairness, some or all posts or photos should be
excluded and that potential evidence must be shown in a particular way.
In R v Sinclair, the accused in an Ontario murder trial wanted to
demonstrate that one of the prosecution’s witnesses and the accused were
in a gang by showing a rap video downloaded from YouTube. 92 O’Marra J
ruled that the violent music and lyrics would be overly prejudicial, but
allowed the admissibility of still photos captured from the video to
challenge the whether the witness was in a gang with the deceased:
The YouTube tribute video is not evidence of reputation or proof of previous
acts of violence. There is no probative value to it to prove a disposition for
violence on the part of the deceased capable of supporting the probability that
the deceased was the aggressor. However, the defendant should not be prevented
from making use of the above described photographs depicted in the video in
cross-examin[ation] 93
Similarly, a Texas Court admitted a MySpace video in a murder trial
of the accused brandishing a firearm because it found the video probative,
but did not permit the audio. 94 An appeal court reviewing the decision
found that while a video showing a suspect with a firearm sometime before
a crime may be prejudicial and inadmissible on its own, it had probative
value because a witness testified the defendant used the same handgun
used in the shooting and it demonstrated that the defendant had access to
the specific firearm. In contrast, a Georgia court found that a YouTube
92
Sinclair, supra note 19.
93
Ibid at para 82.
94
Brumfield v State, 2010 WL 5187690 (Tex App 1 Dist).