That was a key message during the Criminal Lawyers’ Association conference in Toronto in late November. The conference focused on the role of social media in criminal matters and brought home the point that it can help the defence as well as the Crown.
“We have to accept the fact that most clients, witnesses, and even lawyers do not pre-emptively filter social media with an eye to future litigation,” defence lawyer Sean Robichaud told the conference during his session introducing social media.
Robichaud, an active social media user, predicted “profound changes in the way we practise criminal law” and noted police are already very active in that sphere. “They’re conscious of it and we as defence lawyers need to be conscious of it because it’s going to be more and more prevalent in our courts,” he said.
While social media evidence often helps Crown prosecutors, it can also contain exculpatory information as well, Robichaud noted. That’s why one of the first things he asks clients is whether they, the complainants or other witnesses are on social media web sites such as Twitter. It’s important to get that information immediately, he said, adding lawyers can then reach out to witnesses to find out what they saw and also access location data. He pointed out, for example, that one of the first tweets about the 2012 shooting at Toronto’s Eaton Centre was from someone tweeting as the events unfolded.
“Importantly to us, it’s admissible evidence,” said Robichaud.
Addario also echoed Robichaud in noting the ways in which digital information can help defence counsel. He cited information that can help establish an alibi through, for example, locational data from cellphones; information that can help implicate third-party suspects; and police body-worn cameras. “The message is if they’re watching us all the time, then we should be the beneficiaries of it as well,” Addario told the conference.
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