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.
Volume 98 - No. 1
- Note: Copyrighted Laws: Enabling and Preserving Access to Incorporated Private Standards
- Note: Embracing Ambiguity and Adopting Propriety: Using Comparative Law To Explore Avenues for Protecting the LGBT Population Under Article 7 of the Rome Statute of the International Criminal Court
- Note: Getting Back to Basics: Recognizing and Understanding the Swing Voter on the Supreme Court of the United States
- The Value of the Standard
- The Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination
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