Social media now a valuable source of evidence in criminal trials

The most obvious uses of the tool are in defence cases but recently prosecutors are also getting in on the act

In recent years Facebook and its equivalents have become an invaluable source for lawyers. Photograph: Niall Carson/PA Wire

In recent years Facebook and its equivalents have become an invaluable source for lawyers. Photograph: Niall Carson/PA Wire

Mon, Jul 28, 2014, 01:15

“You appear to be straddling a naked man in this photo,” the barrister said as he held up a screen grab with an unmistakable blue border. “Is this typical behaviour of a woman who lost her confidence because she was raped just a few months previously?”

The young woman sitting in the witness box in the Central Criminal Court appeared nervous as she replied that she was entitled to have a good time and, besides, the man wasn’t completely naked. The senior counsel appeared pleased with the point he had made and moved onto another area.

This exchange occurred during the cross-examination of a woman who was raped as she slept in her bed (the accused was later convicted). The picture came from her Facebook page.

It may be a morally questionable line of defence to some, but it is also a prime example of the increasing use of social media as a defence tool in criminal trials. In recent years Facebook and its equivalents have become an invaluable source for lawyers who are coming to realise that a few indiscreet photos or ill-advised status updates can often be enough to put some doubt into a jury’s mind about a witness’s evidence.

“Facebook evidence inevitably becomes involved in a large number of crimes or other legal matters,” says Ross Donnelly, a digital forensic investigator with the UK-based Keith Boer Consultants.

Donnelly specialises in analysing social media for media clients and business is booming, both here and in the UK: “Inquiries regarding Facebook evidence have skyrocketed in recent years; with over a billion users worldwide so it’s no surprise.”

Police forces, including the gardaí, have invested heavily in digital forensics but Donnelly believes so-called Facebook evidence is “a much more specialised niche” which requires outside expertise.

“Often, Facebook evidence is captured by frontline gardaí or in-house IT departments, who may miss vital evidence as they don’t have a forensic background.”

This is where his company comes in: “It can be a case of just advising the solicitors and barristers, who may not use Facebook themselves. Other tasks include producing Facebook content in an auditable fashion, examining Facebook logs for evidence in relation to a specific allegation, or a full forensic examination of a computer.

“This could be to recover deleted Facebook content, or to identify the user of a computer at the time another crime was committed, for example the downloading of indecent images of children.”

Most of Donnelly’s clients are on the defence side, as police forces will usually rely on their own in-house specialists. His most common jobs are the “I didn’t send that message” cases which involve examining Facebook logs for evidence of someone else accessing an accused’s account to send illegal messages.

State of mind

He is also occasionally enlistled to challenge prosecution evidence about an accused’s state of mind. He cites one example of a man who was charged with murder by strangulation. During the trial the prosecution presented evidence that the accused had twice googled the term “garrotted” before the alleged murder.

However, when his computer was analysed, the first search was found to have never taken place. As for the second search, investigators were able to produce an innocent explanation by examining the man’s Facebook chat log. They discovered that he had searched for the word immediately before using it in “friendly banter” with a pal on Facebook’s chat function.

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