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

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." Thus, no longer will an attorney be limited to offering an inconsistent statement simply to demonstrate inconsistency, but may also offer it to show its substantive truth.

In light of this impending change, the presenters will offer strategies and best practices for deftly leveraging prior inconsistent statements during cross-examination to cast doubt about the testimony of opposing witnesses while avoiding the pitfalls and unnecessary mistakes. The panel will also consider practical issues presented by the unsworn nature of prior statements. Effective impeachment can be game-changing but it must be simple, clear, and material. 

The panel will discuss why archived 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.

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?
• How are old web pages authenticated, who does it, and how long does it take?
• How is a printout of a webpage/social media post converted into a properly authenticated exhibit at trial?
• Are prior factual statements inconsistent with a witness' current claim of a lack of memory?