By Douglas J. Manning, Partner, Certified Specialist in Family Law
There certainly has been a lot of media attention and commentary about the process and evidence in the criminal trial involving media personality Jian Ghomeshi. But I am not writing about whether the alleged victims were treated fairly or whether the scope of the evidence was too broad or too narrow. Rather, I was struck by how much evidence there was from Emails and other forms of electronic communications between the alleged victims and the accused and how that evidence was used in the trial.
If I recall correctly, Mr. Ghomeshi’s defense team was able to put their hands on numerous Emails going back over 10 years (as well as more recent emails and texts over the past couple of years between the complaints and Mr. Ghomeshi and others). I was struck by how effective this bundle of evidence was, at least in the court of public opinion and in the media reports.
I immediately drew parallels in my mind to how relevant and effective this type of evidence has been, and could be, in a family law matter where history and credibility might be at issue. Let’s consider an example. In a child custody case, one parent might raised the issue that the other parent has been disinterested in the children for years and has never “pulled their weight” in terms of the day to day tasks that parents are required to perform for their children. Yet there might be a string of Emails over the years from the complaining parent to the other parent, or other friends or relatives singing the praises of the other parent as a caring, committed, involved and child-focused parent. Sort of a “parent of the year” characterization. Or some of the emails may just be coordinating tasks for the children between parents – who is taking the children to appointments, their extracurricular activities, shopping, etc.
If the parent being accused of non-involvement has kept those Emails, or can get those Emails, from the internet provider, then he or she can make good use of this “evidence” to poke holes in the picture the complaining parent is trying to paint and, in doing so, this might have a side-effect of diminishing the credibility of the complaining parent.
Over the past 15 years or so of practicing family law I have developed the habit of advising clients to be very careful of what they put out there on the internet, whether it be Emails, Facebook post, Instagram messages etc. Once it is “out there”, it is very hard (impossible) to get it back.
A word to the wise.