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: Toward Definition, Not Discord: Why Congress Should Amend the Family and Medical Leave Act To Preclude Individual Liability for Supervisors
- Note: Tweeting the Police: Balancing Free Speech and Decency on Government-Sponsored Social Media Pages
- Note: Guardians of Your Galaxy S7: Encryption Backdoors and the First Amendment
- Tie Votes in the Supreme Court
- Knowledge Goods and Nation-States
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