My Two New Essays on Hearsay and the Authentication of Social Media Evidence

I recently published a couple of new essays. The first is Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay,  71 Wash. & Lee L. Rev. Online 180 (2014). Here is the abstract:

The rule against hearsay covers a statement offered to prove the truth of the matter asserted but does not cover a statement offered for another purpose. Meanwhile, the Best Evidence Rule states that a party seeking to prove the content of a writing, recording, or photograph must produce the original or account for its nonproduction. Does this mean that the Rule is inapplicable when a party seeks to prove something other than the truth of the matter asserted in a writing, recording or photograph? Most courts have answered this question in the affirmative. This essay argues these courts are wrong.

The second is The Social Medium: Why the Authentication Bar Should Be Raised For Social Media Evidence, Temple Law Review Online (2014) (with Charles White). Here is the abstract:

This article is the first publication in Temple Law Review Online, a new platform for publishing scholarly works that are shorter than the traditional law review article, involve time-sensitive topics, or directly respond to materials published in Temple Law Review’s printed issues. We are excited to present the inaugural writing on a fitting topic: the intersection of modern Internet culture and traditional laws of Evidence. Professor Miller uses recent examples of “social media evidence” to argue that, given the current technological and social climate, a more stringent authentication standard must be developed and used.

-CM