Criminal trials often involve circumstantial evidence indicating an accused’s or victim’s state of mind. Increasingly frequently, this evidence includes Internet search histories performed before, during or after alleged offending. Search histories can provide critical details of planning, motivation, means of commission, or attempts to hide evidence. Law enforcement access to suspects’ data is regulated by a growing array of search and other warrant powers, with some judicial supervision. Various rules of evidence govern admissibility in criminal proceedings, including relevance, hearsay, opinion, admissions, tendency and discretionary exclusion provisions. Cases on these aspects of Internet search history are reviewed to identify emerging trends.

Following the Royal Commission into Institutional Responses to Child Sexual Abuse, amendments have been introduced allowing a greater range of tendency evidence in child sex abuse cases, meaning that Internet search histories will most likely assume greater importance in proving the state of mind of an accused. This may place a greater burden on discretionary exclusion based on fairness to the accused. Protective rules relating to complainants and victims also have to be considered when evidence of their Internet search histories is being presented, particularly if this raises issues of their sexual history or reputation. As a separate issue, Internet searches by jurors can lead to aborted trials or successful appeals, and must be managed by trial judges with increasing regularity.

Note: This is an in-person event only.