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: E-Commerce Law

Internet Evidence (Part II: Hearsay)

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Last Wednesday, we addressed the application of Fed. R. Evid. 901 to Internet content. This week, we discuss the application of the Hearsay Rule to such evidence.

Hearsay

Hearsay is any "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801. It is generally inadmissible. Fed. R. Evid. 802. If the proponent of Internet content clears the authentication hurdle, the next objection to the proffered evidence is typically made on hearsay grounds.

The Hearsay Rule does not apply to three types of statements expressly defined by the Federal Rules of Evidence as "non-hearsay": (1) prior inconsistent statements - sworn statements which are inconsistent with the declarant's trial or hearing testimony; (2) prior consistent statements offered to rebut a charge "against the declaration of recent fabrication or improper influence or motive"; and (3) admissions of a party-opponent. Fed. R. Evid. 801(d). The first of these hearsay "exclusions" is not likely to apply to Internet content, but the second and third often do.

Generally, statements made by an opposing party on its website are admissible under Fed. R. Evid. 801(d)(2). See Telewizja Polska USA, Inc. v. Echostar Satellite Corp., No. 02 C 3293, 2004 WL 2367740, at *7 (N.D.Ill. Oct. 15, 2004); Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1155 (C.D.Cal. 2002); Van Westrienen v. American Collection Corp., 94 F.Supp.2d 1087, 1109 (D.Or. 2000). However, substantive information placed by a third-party on an opposing party's website will not be admissible; such content does not constitute a statement of a party-opponent if not authored or adopted by the opposing party. U.S. v. Jackson, 208 F.3d 633, 637-38 (7th Cir. 2000).

"Internet Evidence" is a multi-part series addressing the application of evidence law to Internet content. Next Wednesday, we'll discuss the application of exceptions to the hearsay rule.

Full post as published by E-Commerce Law on July 09, 2008 (boomark / email).