Description
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.
Presented By
Mr. Sappington brings experience in leading high-growth organizations, with prior roles in software and management consulting. He holds an MBA from Stanford.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Date + Time
- event
Tuesday, October 28, 2025
- schedule
1:00 p.m. ET./10:00 a.m. PT
I. Amendments to FRE 801(d)(1): what changes and what stays the same
II. Overview of methods of impeachment
III. Prior inconsistent statements
A. Three C's of impeachment with prior inconsistent statements
B. Qualities of effective impeachment
1. Simplicity
2. Clarity
3. Materiality
C. What goes wrong and why
IV. New sources of prior inconsistent statements
A. Using archived data as evidence for impeachment
B. The Wayback Machine and Internet Archives
C. Important decisions
D. Practical tips for overcoming objections to authenticity of webpages and social media posts
The panel will review these and other important questions:
- Is there a difference between what is necessary to authenticate evidence for summary judgment and at trial?
- What are the methods, responsibilities, and timelines for authenticating archived web pages?
- How can web or social media content be preserved and converted into a properly authenticated exhibit for use in court?
- Are prior factual statements inconsistent with a witness' current claim of a lack of memory?
