The Case for eHearsay

On April 4, 2014, the Advisory Committee for the Federal Rules of Evidence convened the Symposium on the Challenges of Electronic Evidence.The purpose of the symposium was "to consider the intersection of the evidence rules and emerging technologies" and explore what rule changes, if any, might be warranted in light of sweeping changes in the way people communicate. 1 As an unapologetic advocate for changes to the hearsay rules, I thought it a happy coincidence that the symposium coincided with Seventh Circuit Judge Richard Posner's call for sweeping hearsay reform. 2 In a 2013 article, eHearsay, 3 I proposed a hearsay exception for "Recorded Statements of Recent Perception" (RSRPs).4 The exception is designed to distinguish reliable from unreliable electronic communication (e.g., text messages and social media posts) and permit the former to be presented to fact-finders.The Advisory Committee invited me to present my RSRP exception at its symposium.After my presentation, a member of the Advisory Committee, Professor Paul Shechtman, provided formal comments on my proposal.Some of these comments resonated with a response Professor Colin Miller published to eHearsay, concurring in part and dissenting in part to my proposal.5 This Essay responds to the various concerns about my proposed hearsay reform raised by Professors Miller, Shechtman, and others.Change is never easy.Proponents of changes to the evidence rules fairly bear the burden of persuasion that any particular reform is preferable to the status quo.In this Essay, I aim to do just that, while also addressing Judge Posner's suggestion for hearsay reform.While I agree with the judge's call for a more permissive attitude toward the admission of hearsay, I believe * Associate Professor, William