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Memorandum: Hearsay Exception for Electronic Communications of Recent Perception

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Daniel Capra

Memorandum: Hearsay Exception for Electronic Communications of Recent Perception

Abstract:

At the Advisory Committee’s Symposium on Electronic Evidence, held in April 2014, Professor Jeffrey Bellin proposed an amendment to the Federal Rules of Evidence that would add two new hearsay exceptions: one to Rule 804(b), which is the category for hearsay exceptions applicable only when the declarant is unavailable to testify; the other to Rule 801(d)(1), for certain hearsay statements made by testifying witnesses. Both exceptions are intended to address the phenomenon of electronic communication by way of text message, tweet, Facebook post, etc. Professor Bellin contends that the existing hearsay exceptions, written before these kinds of electronic communications were contemplated, are an ill fit for them and will result in the exclusion of many important and reliable electronic communications.

To solve the perceived problem, Professor Bellin proposes a modified version of the hearsay exception for recent perceptions — an exception that the original Advisory Committee approved, but which was rejected by Congress. Professor Bellin contends that the proposal will allow most of the important and reliable tweets and texts to be admitted, while retaining sufficient reliability guarantees that will exclude the most suspect statements. And he contends that the proposal fits well within evidentiary doctrine because it derives from a hearsay exception that the Advisory Committee approved — an exception that, though rejected by Congress, has actually been adopted and applied in a handful of states.

Professor Bellin makes a detailed case for his proposal in an article published in the Minnesota Law Review. He follows up the proposal by responding to two critiques—one set forth by Paul Shechtman in his presentation at the Electronic Evidence Symposium, and the other made by Professor Colin Miller.

This Memo analyzes some arguments and issues that the Committee might wish to consider in determining whether to proceed with the proposal to add two hearsay exceptions to expand admissibility, primarily for electronic communications but also for other communications made after a recent perception. The goal for the Committee at this meeting is to determine whether it is interested in pursuing the proposal or some modification of it. If the Committee is interested, then a formal proposal will be prepared for the Spring 2015 meeting.

Part I of this Memo sets forth Professor Bellin’s proposal within the context of the Federal Rules hearsay exceptions. Part II assesses whether expansion of the existing exceptions might be necessary to cover reliable eHearsay. Part III raises some questions about the proposal to add a new exception to Rule 804(b). Part IV raises some questions about the proposal to add a new exception to Rule 801(d). This Memo is intended to raise questions for the Committee to consider about the proposal — arguments in favor of the proposal have been made effectively by Professor Bellin elsewhere.

 

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