Connecticut Law Review Volume 44 – Issue 5

Uploading Guilt: Adding a Virtual Records Exception to the Federal Rules of Evidence

The creation of email and social networking websites significantly altered the practice of law.  The wealth of information exchanged through emails, and postings on Facebook and MySpace has aided prosecutors, defense attorneys, and civil trial attorneys in litigating their cases.  But despite the prevalence of email and social networking evidence in the legal field, the Federal Rules of Evidence have remained inadequate for dealing with this type of technology.  Attorneys have been met with mixed results in their attempts to authenticate emails and social networking evidence at trial.

Currently, courts are split on whether the content should even be admitted.  Some courts take a hard-line approach, finding email and social networking content inherently untrustworthy.  Others find that the content is not any different than signatures and letters, which have the potential to be forged.  Those courts that find the content suitable are not in agreement over the need for a new Federal Rule of Evidence.

This Note argues that email and social networking evidence should be admitted in both criminal and civil court cases, given courts’ long history of admitting circumstantial evidence in trials.  It further proposes an amendment to the Federal Rules of Evidence regarding virtual records.  Such a rule, modeled after the public records exception, is appropriate in recognition of the fact that new technologies have made it easier for individuals to securely maintain private records, such as emails, bank statements, and social networking posts on virtual databases.

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