The Admissibility of Web-Based Evidence

36 Pages Posted: 22 Apr 2013 Last revised: 8 Feb 2014

See all articles by G. Michael Fenner

G. Michael Fenner

Creighton University School of Law

Date Written: April 22, 2013

Abstract

This article explores the new and important topic of the admissibility of web-based evidence — from authentication to hearsay to judicial notice and beyond. By and large, the novel question regarding the admissibility of web-based evidence — business and personal websites, social-networking pages, and the like — is going to be authentication. And that is where the article begins.

Once the evidence is authenticated — shown to be what its proponent claims it is — most of the rest of the evidentiary problems are the common problems lawyers face all the time For example, is the printout itself hearsay or are some of the matters asserted on the printout or in the recording hearsay? Does the printout run afoul of the rule requiring the production of the original, a.k.a., the best evidence rule? Can the court take judicial notice of the website and of matters found on the website? Does the prosecutor’s admission of web-based evidence against the accused in a criminal prosecution violate the Confrontation Clause? The article explores these admissibility issues and many more.

Electronic evidence has been with us for a long time — web pages, electronically stored information, digital recordings of voice messages, and Facebook pages are not new. That causes some to wonder why the law of evidence has not adopted new and special rules for dealing with the admissibility of this kind of evidence. The answer is that for the most part the rules that pre-existed electronic evidence provide an adequate framework for resolving the evidentiary problems involved with the introduction of this kind of evidence as well. This article explains how it is that the technology is new, but the evidentiary problems are not.

Keywords: Evidence, Litigation, Trial Advocacy, Internet

Suggested Citation

Fenner, G. Michael, The Admissibility of Web-Based Evidence (April 22, 2013). Creighton Law Review, Vol. 47, No. 1, 2013. Available at SSRN: https://ssrn.com/abstract=2255010

G. Michael Fenner (Contact Author)

Creighton University School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States

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