The Admissibility of Tweets

I guess a better question when talking about the admissibility of tweets is whether any exceptions to the hearsay rule apply?  Tweets are out of court statements which are not admissible in court unless they fit into one of the exceptions or exclusions.  But they will most likely be admissible, at least judging from the treatment by courts of email and other similar evidence. 

Professor Brenner has a good post at Cyb3rCrim3 ("Evidentiary Tweets?") which looks at whether and in what circumstances Tweets (or similar messages) will be admissible.  She links to a post by Joshua Konkle ("Twitter and Federal Rules of Evidence 803(1) and 803(2), hearsay exceptions"), which I've previously linked to as well

Professor Brenner looks at the excited utterance and present sense impression exceptions to the hearsay rule, and thinks that while they may apply to allow the admission of tweets, there's another candidate:
I strongly doubt that the business records exception or many of the other hearsay exceptions will apply to tweets . . . but the exceptions contained in Rules 803(1) and 803(2) just might. ...

I don’t think these are the only exceptions that could be used for tweets. Under Rule 803(3) of the Federal Rules of Evidence, “[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition . . . but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will” is not excluded by the default hearsay rule. According to the Advisory Committee, this is “essentially a specialized application” of the present sense impression exception. Advisory Committee Federal Rules of Rule 803(3). The Committee also noted that excluding statements of memory or belief is “necessary to avoid the virtual destruction of the hearsay rule, which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis” for inferring the event which “produced the state of mind.”

It seems to me Rule 803(3) may be a better fit for tweets than the other two rules. As a federal judge noted, “Rule 803(3) is particularly useful when trying to admit e-mail, a medium of communication that seems particularly prone to candid, perhaps  too-candid, statements of the declarant's state of mind, feelings,emotions, and motives.” Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (U.S. District Court for the District of Maryland 2007). And at least one court relied on this exception in ruling that emails were admissible in a federal criminal prosecution. U.S. v. Safavian, 435 F. Supp.2d 36 (U.S. District Court for the District of Columbia 2006).
So the candidates are...present sense impression (803(1)), excited utterance (803(2)), and now the then-existing mental state (803(3)).  I guess the answer will depend on the message in question.  But all three are potential candidates.  (If you are lucky enough to have an opposing party who tweets or Facebooks, the admission of a party opponent route works as well.  This is technically not even considered hearsay.)  Either way, this type of evidence is likely admissible for the reasons stated in Lorraine.  Basically email, Twitter, Facebook, etc. lend themselves to candid conversations and admissions.  The rules of evidence have exceptions which are designed to accommodate the admission of these types of communications, even when they are hearsay.  [Sidenote:  you mean there's not a "what I ate for breakfast" exception to the evidentiary rules for twitter!!] 

Of course, remember to authenticate the evidence and demonstrate that the account is actually registered to the person you are claiming it's registered to.  Sounds like a menial step, but could and probably will turn out to be costly if you ignore it. 

Here's a previous post I did on email authentication at the summary judgment stage that discusses email authentication at length.  My tentative impression at the time was that the present sense impression could be applicable to tweets and I still think that's right, but depending on the context, Professor Brenner's suggestion may also fit the bill. There may be other exceptions or bars to admission in specific cases obviously.

(h/t Moshe Glickman)

Added: good question from William Carleton in the comments about discovery requests and this type of evidence (i.e., how to go about tracking down this type of evidence).  More on that later. 

 
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Comments

  • 9/7/2009 7:02 AM William Carleton wrote:
    Venkat, do you think there is any way to know how prevalent discovery requests might be that include tweets, fb posts, linked in info, etc.?
    Reply to this
  • 9/7/2009 7:56 AM Venkat wrote:
    Great comment/question Wiliam.

    W/respect to public profiles, I expect one would just look for them, print them and make a request to the other party to admit their authenticity or to Twitter/FB to authenticate. (I'm not sure how useful this method will be, since even "public profiles" aren't often publicly accessible. Twitter search, for example, only goes back so far.)

    As far as asking for them in discovery, I haven't seen any good examples but I'll keep an eye out.

    On a related note, I know there's a search service that connects the dots and pulls up various social profiles connected to a person (don't have the link handy, but will dig it up).

    Gotta think about that one.
    Reply to this
  • 9/7/2009 10:22 AM Bryan wrote:
    What about 801(d)(2)? Admission by party-opponent?
    Reply to this
  • 9/8/2009 6:38 AM Venkat wrote:
    Bryan I agree..as I mentioned in the post:

    If you are lucky enough to have an opposing party who tweets or Facebooks, the admission of a party opponent route works as well. This is technically not even considered hearsay.

    Reply to this
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