American Judges Association



Wayne K. Gorman

Date of this Version



Court Review - Volume 57


Used by permission.


Any trials arising out of the events in Washington, D.C., on Wednesday, January 6, 2021, are likely to result in attempts to introduce what has been described in Canada as “social media evidence,” i.e., text messages, Facebook postings, selfies, etc. (see Lisa A. Silver, The Unclear Picture of Social Media Evidence, MANITOBA L. J., 43, no. 3 (2020) at 111). Professor Silver has noted that “social media is often the context in which criminal offences can be committed. It can provide a space in which offences are committed and it can provide proof of it as well” (at 117-118).

Interestingly, social media evidence is often viewed as extremely reliable because it is presented in a manner in which judges can hold, see, and review on their own. Like other documentary evidence, it can be viewed as superior to testimonial evidence, though it is subject to many of the same inherent frailties (see Scott v. Harris, 550 U.S. 372 (2007), for an example of how viewing the same video recording led numerous judges to different conclusions).