The Documentalist

Legal Considerations for Electronic Evidence, Part 4: Hearsay

Posted in Reports by Sarah on July 16, 2010

This post is the fourth in a series discussing a legal opinion that focuses on establishing electronic documentation as evidence for legal proceedings within the United States legal system.  The opinion was written in response to a case  in which both parties submitted emails as evidence to support their claims, but the judge found that neither had taken sufficient steps to establish the admissibility of electronic evidence and dismissed both sides’ motions without prejudice so that they could do the necessary footwork and resubmit.  At the same time, the judge took advantage of writing the opinion to pull together a comprehensive review of extant precedent on electronic evidence in order to create a resource for future counsel relying on electronic documents as a source of evidence.  The judge writes concerning five issues that must be addressed when submitting electronic evidence–just as would be done for paper evidence.  The issues are: relevance, authenticity, hearsay, original or duplicate documentation, and unfair prejudice.

The discussions posted here are based on commentary presented in the Memorandum Opinion for the case “Jack R. Lorraine and Beverly Mack, Plaintiffs v. Markel American Insurance Company, Defendants.  Civil Action No. PWG-06-1893,”  heard in the United States District Court for the District of Maryland.  The opinion was written by Paul W. Grimm, Chief United States Magistrate.  For an overview of the case, please see the post “Legal Considerations for Electronic Documentation in the U.S.

The current post considers questions of hearsay in establishing the validity of electronic documents–above all, email and text messages–as valid evidence.  As with previous issues (relevance and authenticity), we see that precedent established for paper and physical evidence extends to email and other forms of electronic evidence.



Though there is no all-encompassing definition for the  term “hearsay” in US legal practice, the term generally refers to statements made outside of a given judicial proceeding.  Such statements are typically not admissible as evidence because the person communicating the statement is either a) not the person who originally made the statement, or b) is reporting on his or her own previous remembered statement made outside of court. In both cases,  there is no way for the judge or jury to determine the veracity of the statement.  Nevertheless, there are circumstances under which such  reported information can have bearing on a case and not count as hearsay,  therefore, the Federal Rules of Evidence provides the “Hearsay Rule” as an analytic means of determining and defining hearsay.

Hearsay Rule

Though there is no standard definition for hearsay, the Hearsay Rule provides the closest thing to it, stating that hearsay is :

a statement, other than one made by a declarant while testifying at the trial or hearing, afforded in evidence to prove the truth of the matter asserted (see Wikipedia).

As such, the rule’s purpose is:

aimed at prohibiting the use of a person’s assertion, as equivalent to testimony to the fact asserted, unless the assertor is brought to testify in court where he may be placed under oath and cross-examined (see Wikipedia).

Basically then, hearsay consists of reported statements that can’t be verified because it is nothing more than an assertion.  In order to shift assertion to fact, reliable evidence and testimony needs to be brought to bear on the assertion.  The only way that the reliability of such information can be established is for the person who made the original statement (in speech or writing) to testify under oath in court as to the nature of the statement, the context in which it was made, and the meaning of the statement to him- or herself.  Otherwise the statement is mere assertion with no provable truth-value and cannot stand as evidence in court.

Hearsay and Electronic Evidence

The term “hearsay” typically elicits the idea of speech in lay thought, but the Hearsay Rule specifically refers to “statements,” which can be either written or spoken.  This focus on “statement” applies to electronic evidence in two ways: 1) emails, text messages, and computer generated reports are text based; 2) digital video and audio recordings capture spoken utterance or other nonverbal conduct “expressly intended to be an assertion” (Lorraine v. Markel, Pp. 58) that can be considered statements.  Thus, just as with paper documents, in order to determine whether the content of electronic documents is hearsay or fact, the author must testify under oath and submit to cross-examination in order to determine whether the content is fact and can stand as evidence.  In this, we see that as with any other proof of admissibility for electronic evidence, the burden of proof still stands with witnesses who can make an accounting for the content of the document in court (see Legal Considerations for Electronic Evidence, Part 2:  Relevance & Authenticity for a detailed discussion of the role of  testimony in establishing electronic documents as evidence).

This said, there are certain documents–electronic or traditional–that automatically do not count as hearsay and therefore stand as evidence in court.  These include:

  • computer generated reports
  • business records
  • public records (e.g., birth, death, or marriage certificates)
  • excited utterances–“a statement relateing to a startling event or condition made while the declarant ws under the stress or excitement caused by the event or condition”  (FED. R. EVID. 803 (2) as cited in Lorraine v. Markel, Pp. 70).
  • family records
  • statements of  “then existing state of mind or condition”–“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…” (FED. R. EVID. 803(3) as cited in Lorraine v. Markel, Pp. 71.  Note that if a witness says “I believe I was frightened” rather than “I was frightened,” the statement becomes assertion and counts as hearsay, thus it cannot serve as evidence in court.

In all of the exceptions to the Hearsay Rule listed above, the content is considered to be factual and there is no need to have a witness testify and be cross-examined in order to determine its merit as evidence.

In Sum

To summarize then, electronic documents are treated under the Federal Rules of Evidence as traditional print documents.  They must therefore also stand up to the same tests as paper documentation when it comes to determining whether the content is hearsay or defensible fact.  If a statement in an electronic document does not meet one of the exceptions listed above, and a witness cannot provide testimony that the content is more than mere assertion, then the document contains hearsay and cannot be admitted as evidence for legal proceedings.


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