31 Mississippi College Law Review 185, 2012
43 Pages Posted: 17 Apr 2012 Last revised: 21 Aug 2014
Date Written: 2012
Whenever parties seek to introduce out-of-court statements, evidentiary issues of hearsay and authentication will arise. As methods of communication expand, the Rules of Evidence must necessarily keep pace. The rules remain essentially the same, but their application vary with new modes of communication. Evidence law has been very adaptable in some ways, and notoriously conservative, even stodgy, in others. Although statements on Facebook and other social media raise some interesting questions concerning the hearsay rule and its exceptions, there has been little concern about applying the hearsay doctrine to such forms of communication. By contrast, such new media have triggered what could be characterized as a judicial freak-out concerning how to authenticate statements made via social media.
Part II defines and explains the function of social media and Part III discusses where evidence from social media currently appears in modern trials. (The short answer is everywhere).
Part IV discusses hearsay questions raised by statements on Facebook and Twitter, arguing that with some small exceptions, the rules are perfectly well-suited to deal with such new media and that courts face few problems in doing so.
Part V documents the divergent approaches courts have taken to authenticating evidence from social media. Although some argue that the capacity for false authorship and fraud is so great that new rules are necessary, the majority of scholars and practitioners believe that the current rules of authentication are adequate, though there is much disagreement about their application. After setting out the evidence standard for authentication and the various approaches of recent cases, Part IV criticizes the overly cautious and stingy approach of some courts.
Part VI advocates for the more open approach to authenticating social media adopted by some courts. It goes further, arguing for a rebuttable presumption of authenticity barring credible evidence of appropriation or hacking. As with other types of technology when first introduced — photographs, telephone calls, x-rays — an inevitable transition period exists as courts gradually become familiar with the new mode of transmitting information and less fearful of undetectable fraud. In the meantime, it is satisfying to reflect how the Rules of Evidence, properly applied, continue to be an excellent source for accommodating new and sometimes challenging forms of out-of-court communication.
Keywords: Authentication, Social Media, Evidence, Facebook, MySpace, Twitter, Hearsay
Suggested Citation: Suggested Citation
Orenstein, Aviva, Friends, Gangbangers, Custody Disputants, Lend Me Your Passwords (2012). 31 Mississippi College Law Review 185, 2012; Indiana Legal Studies Research Paper No. 203. Available at SSRN: https://ssrn.com/abstract=2041466 or http://dx.doi.org/10.2139/ssrn.2041466