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The Unclear Picture of Social Media Evidence

Prof Lisa Silver just published this brilliant paper in our new MLJ!

The result is a fascinating paper that explores the role of the ever evolving area of social media evidence as a criminal justice threshold.

Prof Silver writes:

"Digital evidence does not reside easily in our rules of evidence. Although the end product can be viewed as a form of real evidence, akin to documents or static pieces of paper, digital evidence defies such neat evidentiary categorization. It is not static. It moves and changes. At its core, digital evidence cannot be passed hand to hand like a document. Rather, it flows from one form to another through a web of technology. Instead of viewing our evidential rules afresh in light of the special attributes of digital evidence, we attempt to “cut and paste” digital evidence into the traditional Wigmore evidentiary rules. Overlaid onto this new digital world is the heady atmosphere of social media, which can provide the source of such evidence. Social media evidence is part diary, part conversation, part image, part bravado, part truth, and presents in real time, past time, or even infinite time. Our legal relationship to social media, as they say in Facebook status-speak is, well, “complicated.” To relieve our sense of legal disquiet, we naturally turn to those evidentiary rules that we already have in place for support. These rules, codified in our statutory electronic document framework in the Canada Evidence Act,3were created to assist in the introduction of computerized data or electronically stored information (ESI). The sections provide evidentiary shortcuts for the admissibility of a broad spectrum of digital evidence, including social media evidence. Instead of embracing social media for what is —an online community —we have simplified it in the name of administrative efficiency".

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