Wheels of justice slowed by bad guy selfies and lots of texts
'It's a big logistical issue and a headache frankly,' says law professor Robert Currie
Facebook posts, Instagram, tweets and texts might be the perfect way for people to share their opinions, photos and feelings at lightning speed, but legal experts say all that instant information is slowing down the judicial system.
"I've had Crowns tell me that traditionally when a guy bought some drugs and a gun, the first thing he would do was go to sell the drugs and use the gun to protect himself. Now the first thing he does is take a selfie with his phone from five different angles and then he texts that selfie to five of his friends," said Robert Currie, a law professor at Dalhousie University's Schulich School of Law.
As a result, Currie said police are "drowning" in evidence because the targets of investigations are generating such a big electronic footprint.
In some cases, people can generate terabytes of data that need to be examined. The problem is it can take a long time for police and lawyers to go through all that evidence to decide what needs to be presented in court.
The longer that takes, the longer people can wait to have their day in court.
"That has become an issue of resources and issue of time across the spectrum of legal proceedings whether you're talking about family law, or criminal law or even civil litigation," said Currie.
"It's a big logistical issue and a headache frankly."
Anna Mancini, a criminal defence lawyer, said she and her colleagues at Nova Scotia Legal Aid will get hard drives filled with hundreds or thousands of pages of disclosure.
"When you add in this social media context, when you add in all these means by which people are communicating that's admissible evidence in many cases, it does jam up the system," she said.
"In some respects, I think we are asking lawyers on all sides to do an impossible task, which is actually to get through all this stuff before the day of trial."
Still Mancini said it's important to pore over the material because social media posts and tweets can help build a case. Posts and messages can show what a person was doing at a particular time, who their friends are and demonstrate how they interact with others.
Electronic evidence is a key part of family law these days, said Krista Forbes, the managing lawyer for Nova Scotia Legal Aid's Halifax North office and its family law section.
Forbes said most times, Facebook posts and text messages make up the majority of evidence in her cases. The volume of evidence depends on the case and the people involved.
Sometimes she only needs to go through a short text conversation, other times it's pages upon pages of texts, Facebook posts or blog entries.
And that eats up hours.
"What would have been, at the beginning of my career, a very short process has now become a time-consuming and laborious effort of going through everything we've ever received from the client and determining relevance," said Forbes.
"We are short-handed family law lawyers particularly in HRM and we are short-handed because cases have become more complex. Not just because the court process has become more complicated but because the means by which people communicate is so much broader and requires so much more of our attention."
There are possible solutions though. Mancini said plans for more cases to go through the restorative justice process could help free up lawyers' time to tackle electronic evidence.
The program, which diverts people accused of minor crimes away from the court system, is being expanded in Nova Scotia to help relieve the overall pressure on the system and help cases proceed in a timely manner.
There is also work being done to try to make searching through electronic evidence more efficient, according to Currie.
Software has been designed that can decide if evidence is relevant to a particular case, which could help take some of the burden off lawyers, but it hasn't been widely adopted yet.
"The concern sometimes is that something will be missed or that a mistaken call will be made. But we are getting to the point quickly, I think, where the machine intelligence will be able to do this more effectively than human intelligence as counter-intuitive as that seems," said Currie.