William & Mary Law School
March 12, 2013
Minnesota Law Review, Vol. 98, 2013
William & Mary Law School Research Paper 09-240
This Article proposes a new “eHearsay” rule of evidence that will permit the admission, over a hearsay objection, of a broad spectrum of electronic out-of-court communications. The proposal builds on prior hearsay reform proposals, and also takes advantage of the fact that electronic statements are invariably recorded. Litigants’ ability to show jurors actual text messages, Facebook “status updates” and Twitter “tweets” authored by percipient witnesses shortly after a disputed event and prior to litigation makes these out-of-court statements compelling vehicles to liberalize the much-maligned American hearsay prohibition. In fact, the new communication norm of generating real-time observations in recorded text messages and social media posts could – in concert with the proposed hearsay exception – transform American litigation’s longstanding struggle with uncooperative, unavailable and forgetful witnesses.
Number of Pages in PDF File: 55
Keywords: evidence, hearsay, texting, Facebook, Twitter, technology, social media, smartphones, internet
Date posted: March 13, 2013 ; Last revised: November 7, 2013