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.