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Social media now used to taint evidence  – defence solicitor

04 Jun 2019 / justice Print

Social media used to taint evidence – defence solicitor

Defence solicitor Dara Robinson said at the Criminal Justice Agencies’ conference today that Facebook is a valuable tool for the spreading of Chinese whispers, often about alleged sexual incidents that happen at parties.

He said witness statements to gardaí were often influenced by what had been read on social media.

Suspects

This is the danger that gardaí must guard against when they are investigating suspects, he said.

“It’s obvious that witness statements can be more heavily influenced by what people read after the fact, than what they saw or heard themselves,” said Robinson.

He believes that witness statements can now be tainted by what people ‘think’ they remember.

The discussion heard that the probative value of in-court cross-examination was needed to fully test this type of evidence, which may be tainted by social-media use.

However, the seminar heard that the vast majority of statements in sexual offence cases were now taken by Garda specialists, and that police expertise was increasing in this area.

Burden

Dara Robinson added that the disclosure burden was becoming a major problem in relation to criminal trials, and the lack of adequate funding via the legal-aid system threatened the proper preparation of trials.

“We’re all in trouble on disclosure, because no one can keep up with the growth in social media,” he said.

The level of disclosure cannot be limited by statute, since disclosure may throw up material that the defence believes is of huge relevance.

“You might find two lines in 1,000 pages of disclosure that has the effect of demolishing the prosecution case, itself put together with thousands of man hours of work,” he said.

When gardaí believe that a crime has been committed, they can seize mobile phones and extract huge amounts of digital data, the seminar heard.

This material may be furnished to the prosecution, and delicate decisions must be made about what is relevant to the trial process.

Sexual bravado

Graphic and explicit sexual bravado conversations at the outset of a dating app contact can be problematic later on, if a sexual offence is alleged to have taken place.

Junior staff working on disclosure may not have a clear understanding of the fine line of relevance, the seminar heard.

However, social media presents a policy challenge that is not going to go away, he stated.

And the digital-native, younger generation are often two platforms ahead of where their policy-making elders may be, and often maintain multiple profiles on a single site.

The answers aren’t going to come from the older generation, the seminar heard.

In a similar situation of blurred boundaries, delegates heard that policing territory was being invaded by online vigilantes.

Deluded

‘Paedophile-hunter’ evidence was being used in British courts, but those involved often reached “deluded conclusions”, and paedophiles enjoyed the same right to presumption of innocence as any other defendant.

Barrister Monika Leech said that when ‘paedophile-hunters’ material was the only evidence available, it was fraught with danger.

“Will it withstand the rigours of cross-examination, or will it be admitted at all?” she asked.

If the press publishes the location of newly-released sex offenders, this may hamper their proper re-integration into society, thus increasing the risk of re-offending, the discussion heard.

A highly reputable sex-offender-rehabilitation facility had to move to a secret location after details of their address near a school were published, Dara Robinson said.

Anonymity

Monika Leech pointed out that defendant anonymity ceases on conviction, but a wrongful conviction can have a devastating effect.

Ireland doesn’t hold an open sex offenders’ register, and there is often a close nexus between complainant and accused.

Often, a complainant will waive anonymity in order to bring public attention to some particular aspect of their case.

We cannot underestimate importance of reporting restrictions, Leech told the seminar.

Comment

To avoid an unfair trial, pre-trial public comment must be restrained, she said.

A recent Chief Justice practice direction has clarified matters, and limits potential for unregulated social media to have an effect on a trial, by banning commentary from ‘hobby’ journalists.

But social-media platforms were now a valuable source of probative evidence, the seminar heard.

When investigating a complaint, gardaí can now use extraction tools to unearth entire digital footprints – from private messages, to social media posts, to location information – which can all be used as evidence in court.

Task

Admission of this evidence is another task for the prosecution, however.

Data gathered by Facebook Ireland is sent to the US for storage. This creates another layer of permission to be sought, which can drag out a case.

As dependency on social media grows, victims may take to browsing online to identify their alleged assailant. This type of ‘displacement’ evidence could taint any formal identification procedure by police.

Monika Leech pointed out that material posted on Facebook could be prejudicial, and highly visible to jurors and potential jurors.

Perils

Juries are now routinely warned to only consider evidence presented in a trial. The judge will warn of the perils of consulting the internet, lest they develop a distorted view of the evidence.

However, it is hard to gauge whether exposure to social media has increased convictions, Monika Leech said.

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