eHearsay

55 Pages Posted: 13 Mar 2013 Last revised: 7 Nov 2013

Jeffrey Bellin

William & Mary Law School

Date Written: March 12, 2013

Abstract

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.

Keywords: evidence, hearsay, texting, Facebook, Twitter, technology, social media, smartphones, internet

Suggested Citation

Bellin, Jeffrey, eHearsay (March 12, 2013). Minnesota Law Review, Vol. 98, 2013; William & Mary Law School Research Paper 09-240. Available at SSRN: https://ssrn.com/abstract=2232345

Jeffrey Bellin (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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