At EvidenceProf Blog, Jeff Bellin posts about the
Aaron Hernandez case and the evidentiary concerns with text messages that were
sent by the victim. The victim’s text
messages indicate that the victim was with Hernandez shortly before his death.
Bellin notes that the text messages are hearsay
and that this can be a big problem for the prosecution since the hearsay
exception that would typically apply to these messages (present sense
impression) has not been adopted by Massachusetts. Bellin uses this as a jumping-off point to note
his forthcoming article, “eHearsay,” where he discusses the need for revisions
to rules of evidence that would allow recorded statements such as posts on
Facebook or Twitter to be admitted in the event of the declarant’s
unavailability.
I think that Bellin is on to something when he
argues for a new, general rule that would permit the admission of recorded
statements about recent events in the event of the declarant’s unavailability. With the rise of Twitter and Facebook, there
is going to be a lot of this evidence available, and the admission of this
evidence would help paint a more realistic picture of events for the jury. Additionally, there is less of a danger that the
declarant’s statement will be misinterpreted, since it does not need to pass
through a human intermediary – the statement itself is recorded and can be
admitted as it was written.
On the other hand, using the Hernandez case is a
somewhat misleading way of introducing a discussion for the need of an
“eHearsay” exception. The Hernandez case
is problematic only because Massachusetts is one of a minority of states that
has not adopted the present-sense impression exception to the hearsay
rule. Typically, recorded statements
about what one is doing or experiencing will fall under the present-sense
impression exception to the hearsay rule, especially since many people are now
updating their Facebook and Twitter statuses using smartphones. These status updates occur either
contemporaneously with the events they discuss, or very nearly so. Because of this, most recorded statements
that Bellin wants admitted will probably be admitted under the present-sense
impression exception.
Another qualm that I have with an eHearsay
exception arises from the problem of hacked accounts. As I mentioned above, statements that are
recorded by the declarant are generally more reliable than a statement that is
relayed by a third party. This
reliability is undermined in the Facebook/Twitter context due to the potential
for other individuals to take control of an account. Bellin does not seem to address this concern
in his discussion of eHearsay. While
recorded statements on Facebook and Twitter may provide unprecedented insight
into the experiences of an unavailable declarant, the possibility of these
accounts being hacked creates an unprecedented risk of statements that falsely
appear to have been made by the declarant.
The rise of texting and social network posts
reveal the age of the hearsay rule and its exceptions. Despite this, the rules must be revised with
caution. Old metrics of reliability and
simultaneity do not adequately account for hacking, and any revision to the
rules of evidence must take into account all unprecedented sides of this
debate.
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