Proliferation in the use of online social media continues to have substantial implications for criminal cases in Australia. Social media has impacted criminal cases in a number of ways, ranging from criminal investigations, to being used as evidence in a prosecution case and even potentially interfering with the decisions of a jury at trial.

Influence of Social Media on Police Investigations

Social media applications, such as Facebook, Twitter and TikTok (more recently) have become an important tool in police investigations. As a starting point, these applications have provided police with unprecedented access to the public. You might have seen on your own accounts police engaging with the public via public forum posts, making enquiries into ‘persons of interest’ or even making satirical ‘meme’ posts or social commentary (as cringe as that may be). Nonetheless, social media has transformed the ways in which police are able to conduct their investigations. For instance, increased social media usage has expanded the range of people that police can contact and vice versa. Additionally, social media has allowed police to communicate in real time about incidents and events. A groundbreaking example of social media assisting in police investigations was in the infamous case of Jill Meagher, where the release of CCTV footage on Facebook and YouTube assisted in catching her killer. Another cogent example recently can be seen in the United States, where users of TikTok flooded the ‘For you page’ with content referencing missing person ‘Gabby Petito’, a young influencer who went missing following a highly publicized cross-country camping trip with her fiancé Brian Laundrie. TikTok helped to put this case in the national spotlight, with some going so far as to say it assisted the police in finding her body. However, it is not all positive from a policing perspective. Social media has also increased the spread of misinformation and conspiracy theories, which can have negative consequences on criminal cases. Misinformation can impact investigations and can even lead to individuals being falsely accused of crimes.

Evidentiary Impact of Social Media

Crucially, information that is posted on social media has and will continue to be used as evidence in criminal proceedings. Essentially, anything that an accused person posts on their social media has the potential to be investigated and subsequently used by police. This can have several impacts. It may demonstrate an accused’s intent to commit a crime (if they’re silly enough to post about it), or posts may be used to corroborate a witness statement. In many of the cases we assist in at Galbally Parker, we are disclosed bundles of evidence of offending that has been obtained through social media. Whilst expert criminal lawyers can often exclude this type of evidence, it is particularly hard to exclude evidence from social media as publications on these platforms are considered public in nature (shocking, right?). So, it is important to know that anything that you post CAN and WILL be used as evidence if you commit a crime.

Trial by social media

Perhaps the most negative impact that social media has had on criminal cases is the proverbial ‘trial by social media’. This is topical in high profile criminal cases that are reported in the news. Essentially, trial by social media refers to excessive activity and commentary of a case on social media platforms regarding a pending criminal case. This can have extensive impacts on an accused’s actual trial, as it can influence the public attitude toward an accused before they have even entered the court room. As such, there are man ways that social media can negatively impact trials. Firstly, jurors may be inclined to research details of the trial (that have not been provided as evidence to be relied upon) outside of the court room. This is troublesome, as it can influence their decision-making based on purported evidence that may have otherwise been excluded, or, that is false and misleading. Secondly, jurors must be seen as independent and unbiased, otherwise the accused right to a fair trial can be undermined. It is particularly problematic when a juror makes a post or a tweet about a trial. Thirdly, social media can be used by jurors to contact other parties to the case. Whilst there are rules designed to prevent jurors from contacting outside parties, social media has made this easier and more likely. Although there is a lack of empirical research on this topic in Australia, a study conducted by Reuters Legal in the United Kingdom in 2010 “identified at least 90 verdicts between 1999 and 2010 were challenged due to juror Internet misconduct. They counted 21 retrials or overturned verdicts in the 2009-2010 period. The Law Commission identified at least 18 appeals in the UK since 2005 related to juror misconduct during criminal trials, some of which involved Internet access or social media use”. Ultimately, juror misconduct online can have significant consequences. It can impact the fairness of a trial by prejudicing the mind of jurors. This is particularly troublesome, as it can be hard to establish during the trial process.

In Concusion

As the utilization of social media increases across society, so will its impact on the justice system. Social media isn’t going anywhere, so criminal lawyers will need to adapt and consider all possible impacts when preparing their cases. If you have been charged with a crime and are in need of legal representation, don’t hesitate to contact the team at Galbally Parker Lawyers. We’re Melbourne criminal defence lawyers who respresent clients for a range of offences, including criminal damage, customs offences, family violence offences, and driving offences.