Judge warns Facebook could wreck trials
FACEBOOK and social media websites are turning witnesses into private investigators and tainting evidence before trials even start, a judge has warned.
FACEBOOK and social media websites are turning witnesses into private investigators and tainting evidence before trials even start, a judge has warned.
In a judgment published this week, South Australia Supreme Court Justice David Peek says modern, hi-tech communication tools are making it harder for trials to operate.
He says the "traditional problem" of contaminated evidence has been exacerbated by technology to the point where some cases will need to be thrown out.
"In the age of Facebook, the spectre of what is little more than speculation upon speculation very quickly solidifying into an `accepted view' (of an alleged crime) is something that must be very closely guarded against," he says.
"Facebook has spawned a new generation of (amateur) private investigators... (by) a process often referred to colloquially as `Facebook stalking'
"It is undeniable that this new phenomenon may lead to the acquisition of suspects that police might not have obtained themselves.
"But what also must be stressed is that the process itself has very great problems in relation to the potential contamination of evidence necessary for a conviction."
Justice Peek's judgment relates to an appeal filed by a man convicted of assault.
Prosecution witnesses claimed to have identified him as the attacker by matching their memories of the incident to his Facebook profile.
In his judgment, Justice Peek says that is a modern version of an age-old problem.
He says that, when witnesses are shown photos by anyone other than police, it can taint their recollection and lead to misidentification of offenders.
Witnesses can also become biased by the opinion of the person showing them the photo.
"So-called `Facebook identifications' have none of the safeguards which accompany a properly executed formal identification procedure conducted by the police," he says.
He says a witness viewing "tagged photos" makes the situation "even worse".
"If the appearance of that tagged man is not obviously inconsistent with a memory the person actually has of the actual offender, a `Facebook identification' is highly likely to follow," he says.
For those reasons, and matters relating to the police investigation, Justice Peek allowed the man's appeal, quashed his conviction and dismissed the charges.
Law Society of SA president John White said new forms of communication could be used as resources for lawyers.
"It is common for defence lawyers to check Facebook, and other social media sites, to locate or verify information about claims, parties and witnesses,'' he said.
"As with all evidence or information, it remains important for lawyers to corroborate details wherever possible and understand the potential pitfalls of reliance on a single source.