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

Social Incrimination 245
video with violent lyrics about gang lifestyle written by an acquaintance of
a suspect was not admissible as it was both hearsay and unfairly
prejudicial. 95
Courts have been reluctant to admit photographs from a suspect’s
social networking profile unless they have a highly probative value.
Generally, they are considered inadmissible character evidence. In US v
Phaknikone, 96 an appeals court found that photographs from a MySpace
profile under the user name “trigga” of an accused brandishing a firearm
was highly prejudicial and not probative of whether an accused robbed a
bank. It was not relevant to any detail from the robbery and thus
wrongfully admitted. The appeal court also outlined the evidentiary test
for admissibility of evidence in a US federal court:
First, the evidence must be relevant to an issue other than the defendant's
character. Second, as part of the relevance analysis, there must be sufficient proof
so that a jury could find that the defendant committed the extrinsic act. Third,
the probative value of the evidence must not be “substantially outweighed by its
undue prejudice. 97
Prejudicial evidence may be admissible in certain circumstances. In US
v Drummond, 98 a court did not allow the prosecution to admit photographs
from MySpace of an accused drug dealer posing with large amounts of
cash and a gun. This was despite the accused having no job or legal
income source. The court found that it would be prejudicial for a jury to
convict him because he looked like a drug dealer. However, the court
stated that if the prosecution could find witnesses to testify that the
accused had large amounts of cash and the defendant denied this, then “it
is possible that the relevance of the photos could outweigh any unfair
prejudice.” 99 The probative value of evidence increases when the
defendant takes the stand and provides contradictory testimony.
On the other hand, social networking photographs or profiles can be
highly probative. In R v S(MC), Facebook pictures played a strong role in
an attempted murder conviction. 100 The youth, who had a troubled past,
95
US v Gamory, 635 F (3d) 480 (CA 11 Ga 2011).
96
US v Phaknikone, 605 F (3d) 1099 (CA 11 Ga 2010).
97
Ibid at 1107.
98
US v Drummond, 2010 WL 1329059 (MD Pa).
99
Ibid at 2.
100
R v S(MC), 2010 NSPC 26 (available on WL Can) [S(MC)].