Social Media Evidence: It's Not Always This Easy
Here at ellwood Evidence we spend a lot of time telling lawyers and business people that You just can’t put screen shots of social media posts in as evidence, any more than you can a handwritten copy of a letter. You have to collect social media posts forensically, and authenticate them.
To read a recent decision from New Brunswick Queen’s Bench Justice Lucie A. LaVigne, The Queen v Nde Soh (2014 NBQB 20 (CanLII)) you might think we’ve been off base all this time. You might look at her reasons and ask Who needs forensically collected, authenticated social media evidence? You might decide simple screen shot printouts are fine.
You might think, ask and decide all those things. But Justice Lavigne’s decision changes nothing. In most cases where social media evidence is important, you’ll still need it to be properly collected, forensically sound, and duly authenticated. Nde Soh is just one of those cases where all the facts happen to line up, and create an exception to an otherwise sound rule.
Here’s what happened with Mr. Nde Soh. He was charged with sexual assault. The morning after the assault, the victim wanted to get him to ‘fess up. She went on Facebook. Mr. Nde Soh was online. They exchanged about twenty messages in which she confronted him. Mr. Nde Soh confirmed the assault.
At Mr. Nde Soh’s trial, the Crown’s evidence consisted of the victim’s testimony, and the Facebook messages. Rather than collect the Facebook messages forensically, a police officer went to the victim’s house, accessed her Facebook account with her permission, and did a simple “Print Screen” of the Facebook messages. At the same time, the officer took photos of each screen he printed out.
At trial, the Crown offered the printouts and photos as evidence of Mr. Nde Soh’s guilt. The defence objected. Simplifying, the defence said:
the printouts were not reliable
they weren’t authenticated
there was no proof Mr. Nde Soh himself was the user of the Facebook account sending the messages to the victim.
Justice Lavigne analyzed the defence’s position with care. And she rejected it. She let the printouts into evidence. Mr. Nde Soh was convicted.
You’ll want to read Justice LaVigne’s decision to get the full measure of her reasoning. It’s well written. It’s clear. And it’s right, even though there were no proper forensics.
Why? As I said above, a number of facts lined up to make this a case where the court could let in the printouts as evidence. Those facts are:
The victim gave detailed evidence that tied Mr. Nde Soh to the assault and the Facebook account.
She confirmed that when she sent the messages the morning after, Facebook and her computer were functioning in the usual way.
Mr. Nde Soh put forward no evidence to contradict the victim’s. In fact, he did not testify (this was not a factor in his conviction).
Mr. Nde Soh’s Facebook “handle” was unique. There was no evidence of other users with that handle, reducing any likelihood the messages were from someone else.
Mr. Nde Soh’s messages could only come from someone who knew the victim, and the details of the assault the night before.
The police officer testified that the printouts were unaltered from the time they were created to the time they were offered as evidence.
These facts allowed Justice LaVigne to conclude the evidence was reliable. Quite rightly. Not only did the victim’s evidence confirm this, there was nothing to suggest the printouts were not reliable.
The outcome in The Queen v Nde Soh was very different than the one in the American decision of Antoine Levar Griffin v. State of Maryland, (419 Md. 343, 19 A.3d 415 (2011)). where murder convictions were overturned and sent back for a new trial, because the State had failed to properly prove a MySpace printout.
There will always be exceptions to rules. The Queen v Nde Soh is one of them. Forensically sound social media evidence will, in most cases, be the best evidence.