Prior Inconsistent Statements in Social Media and Inactive Websites: Planning for Amendments to FRE 801(d)

On Dec. 1, 2026, a proposed amendment to Federal Rule of Evidence 801(d)(1) will expand the definition of non-hearsay. Any inconsistent statement that witnesses have made on social media (or otherwise) or that has been published on a company website will potentially be admissible as substantive evidence, not just for impeachment. This will be accomplished by striking the requirement that prior inconsistent, out-of-court statements must have been made "under penalty of perjury at a trial, hearing, or other proceeding or in a deposition."

In light of this impending change, the presenters will review best practice for deftly using prior inconsistent statements during cross-examination to attack credibility while avoiding pitfalls and unnecessary mistakes. The panel will also consider practical issues presented by the unsworn nature of prior statements.

Because social media or inactive websites can be a treasure trove of information in many different types of cases, counsel should be familiar with the Wayback Machine and Internet Archives, what it takes to retrieve historic internet websites and pages, and the complexities of how to authenticate them through FRE 901 and 902 so that they are admissible in evidence.

Listen as our esteemed panel offers guidance for preparing for upcoming changes to the Federal Rules of Evidence and the expanded definition of what is not hearsay.