Evidentiary issues with social media and confessions and admissions

Tips for practitioners

Existing evidentiary principles apply to confessions made on social media. Ensure that you strictly comply with the requirements at Common Law or under the Evidence Act. It is necessary to prove that the person who is supposed to have made the confession actually posted the statements that are alleged to be a confession. This can be difficult to prove unless you can lead evidence of the act of a person making a post. Authentication of a post may involve reliance on circumstantial evidence. Be aware that the timing of a post, content of a post or context of an exchange of posts may be useful to authenticate it. The social media confession must be voluntary, and fair to admit into evidence, just like any other confession. Introduction

There is an old proverb that "open confession is good for the soul". Recently, it seems that users of social media have taken this message to heart. Every month, news services report on criminals who have confessed on Facebook. Murder, rape, theft and all manner of socially abhorrent behaviour are paraded on social media.1 Facebook and other social media sites even have "confession pages", which are meant to enable people to share statements, including confessions on an anonymous basis. Since 2013, many of these pages have gone viral on the internet.

The law relating to confessions is relatively established. A confession is an admission which is a direct and express acknowledgment of facts suggesting guilt. Both at Common Law and under s 81 of the Evidence Act 1995 (Cth), the hearsay rule does not apply to evidence of a confession. However, courts have the discretion to exclude evidence of a confession in certain circumstances.2 There are a number of legal requirements that must be met before a confession will be allowed as admissible evidence. Once a confession is admitted, the weight which should be attached to the confession is a matter for the jury.

But does the confession made on a social media platform, in a Facebook post, in a tweet or on some other form of medium easily fit within these rules of evidence? The answer is that the existing evidentiary principles that relate to confessions made other than on social media will also apply to social media confessions. But, that being noted, social media does present specific issues that need to be addressed when determining if a post on that media is admissible as evidence of a confession.

Provenance of the social media post

The first...