The Aaron Hernandez Case and eHearsay

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.