Friending the Federal Rules: An Analysis of Facebook Likes Under the Federal Rules of Evidence Molly D.

McPartland Abstract: Social Media is an important part of our lives. New ways to communicate using social media are constantly emerging, and the influence of social media on our culture and in our courtrooms is bound to increase. Aside from the Virginia District Courts blunder in Bland v. Robertsholding that a like is not protected by the First Amendmentcourts have yet to deal with nonverbal social media content such as Facebook likes. This Note explains why courts should apply the existing Federal Rules of Evidence excluding hearsay and allowing adoptive admissions to Facebook likes and other nonverbal social media content. This Note argues against reforming the Federal Rules as parties increasingly use nonverbal social media content in the courtroom. Table of Contents I. INTRODUCTION ............................................1 II. BACKGROUND ...........................................2 A. What Is a Facebook Like?.......................2 B. The Federal Rules of Evidence Governing Hearsay..3 1. Statement .................................3 a. Assertions.............................4 b. Grammatical Construction...............8 2. Declarant and Out of Court Statement Components ......................9 3. Truth of the Matter Asserted .............10 C. The Hearsay Exemption for Adoptive Admissions...12 1. Nonverbal Conduct as Adoptive Admissions .13 2. E-Mail Forwarding as Adoptive Admissions .15 III. ANALYZING A LIKE UNDER THE FEDERAL RULES ...............16 A. Likes Constitute Hearsay......................16 1. Statement ................................16 2. Declarant and Made Out of Court Components ...............................19 3. Truth of the Matter Asserted .............19 B. Likes Qualify as Adoptive Admissions..........21 IV. CONCLUSION ..........................................24

1 I. INTRODUCTION

Information obtained from the Internet has transformed from voodoo information i into an exceedingly valuable and commonly used tool for gathering information. The increasing willingness of courts to admit Internet content as evidence has led scholars to consider whatif anyunique evidentiary problems Internet content may pose. ii Scholars have called for adaptations to current law based on the laws general silence about the use of technology in various areas of the legal profession. iii The social-networking site Facebook iv has greatly impacted Internet communication and has steadily worked its way into the courtroom. v Facebook is quickly becoming ubiquitous, with one billion monthly active users as of October 2012. vi Facebook was created to facilitate worldwide communication and awareness of world issues, and as a form of self-expression. vii Based on Facebooks user statistics, viii this form of communication likely will remain a part of peoples lives in the foreseeable future. Facebook is deeply engrained in our society. ix Facebook and other forms of electronic media are an increasingly common form of communication and expression. Therefore, courts must address the admissibility of social media content in trials. This Note argues that Facebook likes constitute adoptive admissions under the Federal Rules of Evidence and that

2 effectively analyzing likes as hearsay does not require any change to the current Federal Rules of Evidence. Part II explains what a like is and gives a basic overview of the Federal Rules of Evidence governing hearsay and adoptive admissions. Part III argues that a like constitutes hearsay and illustrates that likes also qualify for the adoptive admissions hearsay exemption. Part IV summarizes the arguments this Note presents. II. BACKGROUND

This Part explains the concept of a Facebook like and discusses the Federal Rules of Evidence as they relate to hearsay and adoptive admissions. A. What Is a Facebook Like? This Subpart describes a Facebook like through the use of a hypothetical Facebook user named Jane. Jane likes content posted by one of her Facebook friendsor perhaps even a strangerby clicking on the like button below the content as it appears on her Facebook. x However, when Jane clicks the like button, a story appears in her friends News Feedan instant stream of Facebook updates from a users Facebook friends xiwith a link back to Janes page. xii After Jane clicks like, anyone xiii able to view the original content Jane liked or who is able to view Janes Facebook will see that Jane has liked the content. xiv Text proclaiming Jane likes this will appear below

3 the content with Janes name as a hyperlink to her own Facebook page and an icon of the thumbs-up sign. xv There are different reasons Jane may click like. Jane may like content because she finds it humorous, because she agrees with what the content says, or because she wishes to support what the content represents. xvi While Jane may like things for different reasons, each time she likes something, she completes an intentional action xviiclickingin order to communicate with another person. This Note examines how the Federal Rules of Evidence addressing hearsay and the hearsay exception for adoptive admissions apply to a Facebook like. B. The Federal Rules of Evidence Governing Hearsay The Federal Rules of Evidence govern admissibility of evidence in trial. xviii The Federal Rules of evidence generally exclude hearsay evidence from admission in trial. xix A piece of evidence must contain four components in order to qualify as hearsay: (1) the evidence must be a statement, (2) made by a declarant, (3) made outside of the courtroom, and (4) offered for the truth of the matter asserted. xx 1. Statement The Federal Rules of Evidence define a statement as a persons oral assertion, written, or nonverbal conduct, if the person intended it as an assertion. xxi This Subpart first addresses how courts have generally determined what constitutes

4 an assertion. Next, it addresses how courts analyze the grammatical construction of a statement and how that construction affects whether evidence is a statement. a. Assertions Though the Federal Rules of Evidence do not explicitly define assertion, the requirement that a statement be an assertion is a crucial element in the hearsay analysis. The closest the Federal Rules of Evidence come to defining assertion is the statement that nothing is an assertion unless intended to be one. xxii Most analyses determining whether a statement is an assertion center around whether a declarant intends the statement as an assertion. In United States v. Zenni, a United States district court in Kentucky addressed the definition of an assertion under the Federal Rules of Evidence. xxiii The court differentiated between assertions and implied assertions. xxiv The Zenni court held that the Federal Rules establish that implied assertions do not constitute hearsay by providing that no oral or written expression [is] to be considered as hearsay, unless it [is] an assertion concerning the matter sought to be proved and that no nonverbal conduct should be considered as hearsay, unless it [is] intended to be an assertion concerning said matter. xxv Therefore, for a statement to be an assertion, the declarant must intend an element of communication. xxvi

5 In holding that the Federal Rules fail to exclude implied assertions as hearsay, the Zenni court cited a famous example involving a sea captain. xxvii The sea captain example asks: Is it hearsay to offer as proof of the seaworthiness of a vessel that its captain, after thoroughly inspecting it, embarked on an ocean voyage upon it with his family? xxviii The Zenni court held that the Federal Rules of Evidence exclude this type of conduct from constituting hearsay because the declarantin the example the sea captaindoes not intend to communicate anything to the outside world. xxix Because the sea captains conduct was nonassertive, meaning it was not intended to communicate his belief in the trustworthiness of the vessel, the conduct escapes exclusion under the rule excluding hearsay. xxx However, not all nonverbal conduct is immune from the hearsay rule. Some nonverbal conduct, such as the act of pointing to identify a suspect in a lineup, is clearly the equivalent of words, assertive in nature, and [is] to be regarded as a statement. xxxi Therefore, various types of nonverbal conduct qualify as hearsay as long as the declarant has an intention to communicate. Courts have held that nonverbal conduct in the form of gesturing or pointing also constitutes conduct intended as an assertion. xxxii While courts have not addressed whether a like qualifies as a statement for purposes of hearsay, a district court in

6 Virginia recently held that likes are not statements in the First Amendment context. xxxiii In Bland v. Roberts, several officers argued that they were fired for liking the Facebook page of their supervisors opponent for Sheriff. xxxiv The officers asserted that liking the page constituted a statement of support. xxxv The court disagreed. xxxvi The court in Bland held that merely liking a Facebook page is insufficient speech to merit constitutional protection. xxxvii In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record. xxxviii The court found that without a verbal statement, a like fails to warrant constitutional protection. xxxix Many have since criticized the Bland court for the holding that a like is not protected speech. xl The ruling implies that a like may be sufficient to communicate a message that may lead to your termination, but insufficient to warrant First Amendment protections. xli In an amicus curiae brief for Blands appeal of the lower courts decision, the American Civil Liberties Union (ACLU) stated that [l]iking something on Facebook expresses a clear messageone recognized by millions of Facebook users and non-Facebook usersand is both pure speech and symbolic expression . . . . xlii The ACLU noted that a like publishes text that literally states that the user likes

7 something[] xliii and distributes the universally understood thumbs up symbol. xliv When a Facebook user likes a political candidate, as the officers did in Bland, the like is a clear sign of support for that candidate. Similarly, when a user Likes a movie, television show, or game, it shows that he or she enjoys that product. Or if a user Likes another users comment or post, he or she is expressing approval of the information conveyed by that other user. xlv While the standard for whether a piece of evidence qualifies as a statement for constitutional purposes differs from the requirement that a statement must be an assertion for hearsay purposes, xlvi the Virginia District Courts holding and the strong adverse position of the ACLU are informative. The ACLU cites the common understanding of the meaning of a like. xlvii Facebook, which also filed an amicus curiae brief supporting constitutional protection for likes, agreed that likes are inherently communicative. xlviii Facebooks brief implied that liking content is like speaking, stating that [i]f [the officer] had stood on a street corner and announced I like Jim Adams for Hampton Sheriff, there would be no dispute that his statement was constitutionally protected speech. xlix Facebook and the ACLU therefore agree that a like is a tool to communicate ones beliefs and feelings. Facebook and the ACLU are not the only entities that reacted negatively to the Bland ruling. Lawyers and law

8 professors throughout the country have openly disagreed with the decision. l One professor labeled the analysis dead wrong. li It remains to be seen whether the Bland ruling will be upheld on appeal. lii b. Grammatical Construction Courts have held that the analysis used to determine whether a statement qualifies as an assertion, and therefore as hearsay, depends on the grammatical structure of the statement. In United States v. Safavian, the court cited two cases, United States v. Oguns liii and United States v. Long, liv in support of its conclusion that commands and questions providing the basis for hearsay objections in Safavian failed to constitute hearsay. lv In United States v. Oguns, Oguns argued that a question Have the apples arrived there?was excludable hearsay. lvi The Second Circuit disagreed, noting that the lower court had admitted the statement as non-hearsay circumstantial evidence of Oguns knowledge and intent. lvii The Second Circuit held that a question is not hearsay because it is not an assertion. lviii Questions cannot prove the truth of the matter asserted. lix Courts may, however, appropriately use questions as circumstantial evidence of the listeners knowledge, as the lower court did in Oguns. lx In United States v. Long, lxi police officers answered a phone call placed to an apartment during a search of the

9 apartment. lxii On the other end of the line, a voice asked if Keith still had any stuff. The officer asked the caller what she meant, and the caller responded a fifty. lxiii Long objected to this evidence as hearsay because the statements contained an implicit assertion that he was involved in dealing drugs. lxiv The court noted that the key question when determining whether a statement constitutes hearsay asks whether an assertion is intentional or unintentional. lxv While any question arguably contains an implicit message, unintentional messages do not present the same hearsay dangers as intentional messages. lxvi Because the court lacked evidence that the caller meant to communicate that Long was involved in dealing drugs by her questions, the court held that the questions were not hearsay, despite the potential that they contained implied assertions. lxvii Whether a piece of evidence satisfies the statement requirement hinges on whether the evidence is assertive. This determination depends on both the declarants intent to communicate and on the grammatical structure of the statement. lxviii Both verbal statements and nonverbal actions may constitute assertions. lxix 2. Declarant and Out of Court Statement Components The second and third components of hearsayrequiring a declarant and an out of court statementare simple in the

10 context of Facebook likes. [T]he person who made the statement is the declarant. lxx This means that for evidence to constitute hearsay a human being must make the statement. lxxi The requirement that the statement be made outside of the courtroom means the statement is not made by a person while testifying in the current proceeding. lxxii 3. Truth of the Matter Asserted Component The last requirement for evidence to qualify as hearsay is that lawyers must offer statements for the truth of the matter asserted. lxxiii If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted. lxxiv However, a statement offered for the substance of its contentrather than the mere fact that the speaker made itis offered for the truth of the matter asserted. lxxv The truth of the matter asserted need not be direct evidence of the proposition to ultimately be shown. lxxvi Instead, if the matter asserted in the statement, if true, [provides] circumstantial evidence of the matter to be proved[,] the statement constitutes hearsay. lxxvii Some statements exhibit a dual purposeone that goes to the truth of the matter asserted and one that supports another purpose. lxxviii In these situations, the circumstances surrounding the stated purpose for the statement are relevant in determining whether the court must exclude the statement on hearsay grounds.

11 State v. Richcreek addressed the issue of dual use. lxxix In Richcreek, the court held that,[d]espite a professed nonhearsay use, if the statements content could also cut toward proof of guilt, the potential for abuse is great. lxxx Therefore, [w]hen the statements connect the accused with the crime charged, they should generally be excluded. lxxxi United States v. Reynolds also addressed a statement open to multiple interpretations. lxxxii The court in Reynolds held that the statement was not offered to prove its express meaning. lxxxiii However, the party was offering the statement for the truth of its implication that the defendant was guilty. lxxxiv The court stated that it is well settled that evidence is inadmissible hearsay if its probative value depends on the truth of any assertion of fact it contains . . . . lxxxv Therefore, when a statement bears the potential for multiple uses in court, one of which depends on the truth of the matter asserted, courts must consider the statement hearsay. To determine whether a piece of evidence is hearsay, the Federal Rules of Evidence dictate that all of the above requirements must be met. lxxxvi Once the court finds that the evidence meets the four requirements, the evidence is hearsay. lxxxvii The Federal Rules of Evidence provide that courts must exclude hearsay from admission into evidence unless otherwise allowed by federal statute, a different portion of the

12 rules, or Supreme Court precedent. lxxxviii The Federal Rules of Evidence allow for the admission of hearsay that meets a hearsay exception or exemption. lxxxix Courts may still admit evidence that meets the qualifications outlined above and therefore meets a hearsay exemption. The adoptive admissions exemption is one example. C. The Hearsay Exemption for Adoptive Admissions The adoptive admissions exemption to hearsay allows courts to admit some otherwise excludable statements into evidence as nonhearsay statements. The hearsay exemption for adoptive admissions states, A statement that meets the following conditions is not hearsay: . . .(2) An Opposing Partys Statement. The statement is offered against and opposing party and: . . .(b) is one the party manifested that it adopted or believed to be true. xc The statement in the adoptive admissions exemption has the same definition as statement for purposes of hearsay. xci In contrast, the term admission in this context means something other than what people commonly understand it to mean. Statements admitted into evidence under this exemption need not admit anything such as a persons guilt or involvement in a crime. xcii Rather, if a statement can be used against a party at trialfor example a false alibi by the defendant that the government wants to use to show the defendants consciousness of

13 guilt[it] is admissible into evidence despite the fact that it is hearsay. xciii The adoptive admissions exemption requires simply that the party against whom the statement is being offered asserted the statement. xciv While courts have yet to consider whether a like is an adoptive admission, cases considering nonverbal conduct and forwarding of electronic mail (e-mail) messages as adoptive admissions provide an analogous background. 1. Nonverbal Conduct as Adoptive Admissions In United States v. Joshi, the Eleventh Circuit Court of Appeals reviewed the district courts decision to admit a head nod in response to a statement made by another person as an adoptive admission. xcv In reviewing the ruling, the court held that evidence must meet two criteria for courts to admit a statement as an adoptive admission: First, the statement must be such that an innocent defendant would normally be induced to respond, and [s]econd, there must be sufficient foundational

facts from which the jury could infer that the defendant heard, understood, and acquiesced in the statement. xcvi The first of these criteria is relevant in cases of adoption by silence. xcvii Because Joshi acted by nodding his head rather than remaining silent, the Joshi court easily found that this first criteria had been met. xcviii

14 In addressing the second criteria, the court held that evidence meets this requirement when a jury could reasonably find that the defendant comprehended and acquiesced in the statement. xcix An undercover agent had introduced Joshi as the agents partner in the Newark and the Miami hashish importation plans. c Joshi nodded his head in response to this introduction. ci The court held that the nod itself could support an inference that Joshi understood the statements to which he was responding, and that there was sufficient evidence for a reasonable jury to conclude Joshis nod provided an acknowledgment of the statement. cii Therefore, the court held that the head nod fulfilled the requirements for an adoptive admission. ciii United States v. Price also addressed whether a head nod satisfied the requirements of the adoptive admissions exemption. civ In Price, the defendant nodded his head repeatedly when another person, Hill, described bank robberies he had committed with the defendant. cv The defendants head nod suggest[ed] that he had helped Hill commit these crimes. cvi The court reviewed the admission of the head nod as an adoptive admission for plain error. cvii Though people may interpret the defendants head-nodding in various ways, including that he was impressed by Hills criminal exploits, the court held that because Hills statement was made in [the defendants] presence

15 and because [the defendant] appeared to adopt it as his own signifying that he, too, participated in these crimesthe statement was admissible under Rule 801(d)(2)(E). cviii 2. E-Mail Forwarding as Adoptive Admissions In United States v. Safavian, the court applied the adoptive admissions doctrine to forwarded e-mails. cix In Safavian, the court provided little information on the process it used to determine whether an e-mail message constituted an adoptive admission by Safavian. cx The court held simply that [t]he context and content of certain e-mails demonstrate clearly that Mr. Safavian manifested an adoption or belief in the truth of the statements of other people as he forwarded their e-mails, while certain other e-mails did not have the requisite context. cxi Without explaining what context was sufficient for this showing, the court admitted some e-mails as adoptive admissions and excluded others. Safavian illustrates that the simple act of forwarding an e-mail message does not necessarily constitute an adoptive admission without context indicating an adoption of the information contained within. In Sea-Land Service, Inc. v. Lozen Intern., LLC., the Ninth Circuit Court of Appeals addressed the admissibility of an email message as an adoptive admission. cxii In Sea-Land, one SeaLand employee forwarded a memo to another Sea-Land employee, prefacing the forwarded message with Yikes, Pls note the rail

16 screwed us up.... cxiii The court held that this constituted an incorporation and adoption of the original e-mail rising to the level of manifest[ing] an adoption or belief in [the] truth of the information contained in the original e-mail. cxiv These cases illustrate that the context surrounding ones silence or statement is key to determining whether the silence or statement is an adoptive admission. Therefore, to determine whether a specific like constitutes hearsay or an adoptive admission, courts must take the context of the like into account. Keeping the necessity of context in mind, courts must analyze likes under the existing Federal Rules. III. ANALYZING
A

LIKE UNDER

THE

FEDERAL RULES

In order to require qualification under a hearsay exemption, evidence must first qualify as hearsay. Subpart A establishes that a like constitutes hearsay. Subpart B argues that a like qualifies for the adoptive admissions exemption to the hearsay rule. A. Likes Constitute Hearsay A like constitutes hearsay in the same circumstances as any other piece of evidence: when the evidence meets conditions of the Federal Rules of Evidence. Therefore, a like must contain four components in order to qualify as hearsay: (1) the evidence must be a statement, (2) made by a declarant, (3) made

17 outside of the courtroom, and (4) offered for the truth of the matter asserted. cxv 1. Statement The requirement that a like qualify as a statement represents the most complicated hearsay qualification analysis. A statement is defined as a persons oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. cxvi The Federal Rules of Evidence do not define the term assertion. However, if the conduct is assertive in nature, that is, meant to be communicativelike the nodding or shaking of ones head in response to a questionit is treated as a statement, and the hearsay rule applies. cxvii The key question in determining whether nonverbal conduct constitutes a statement is whether the actor intended to communicate something. When an actor does not exhibit an intention to communicate something through his or her nonverbal conduct, the conduct is not a statement. cxviii While a person may have various subjective purposes for clicking like, all of the potential purposes for clicking like share a common thread: liking something signals a positive reaction to the content or a show of support. cxix Facebook advertises a like as an easy way to let someone know that you enjoy something, without leaving a [verbal] comment. cxx

18 The intention to communicate that a person actually likes something lies embedded in the purpose of the like. Facebooks advertisement of a like as a means of communicating ones positive reaction to posted content was reinforced by the position Facebook took in Bland v. Roberts. cxxi Facebook has consistently explained a like as a means of communication. Therefore, based on the purpose of the like tool as asserted by Facebook and as commonly understood by Facebook users, cxxii a Facebook user clicks the like when he or she intends to communicate something. The fact that the creators of Facebook intend likes for use as a communicative tool supports the notion that likes constitute statements for purposes of hearsay. cxxiii Legal scholars and writers have supported Facebooks position on the communicative nature of a like, providing examples of analogous speech that would constitute a statement. cxxiv Its hard to imagine the slogan I Like Ike would not have taken on a strong dose of Facebook meaning with supporters liking him online were Dwight Eisenhower to run for office in 2012. cxxv One law professor noted that [p]ressing like on Facebook is the cyberequivalent of making a gesture at someone. We know that giving someone the finger or clapping for someone are forms of protected expression. cxxvi Though these examples were discussed in the context of the Bland holding that

19 likes do not constitute speech for purposes of First Amendment protection, the analogies also ring true in the context of analyzing assertive conduct for hearsay purposes. Though a court may initially determine a like to be hearsay, the party arguing that a like escapes qualification as hearsay may offer evidence that the like in a specific case was not communicative because the use of like was an accident or not meant to communicate anything. cxxvii However, absent evidence showing that the like in a particular case was not intended as a communication, likes must be considered statements for purposes of hearsay because both the common characteristics of likes and the common understanding of likes support the finding that likes are intended as tools for communication. 2. Declarant and Made Out of Court Components The declarant requirement focuses on whether a human being generates the statement. cxxviii While a like may be clicked by mistake, a person using a machinenot the machine itselfstill clicks the like button. Furthermore, whether a person clicks like by mistake raises an authentication issue rather than an issue as part of the hearsay analysis. cxxix Likes represent an action that occurs on the Internet through the use of Facebook. Witnesses typically cannot access the Internet while they are testifying. Therefore, this Note

20 assumes that clicking like takes place outside of the courtroom. cxxx 3. Truth of the Matter Asserted The requirement that the like be offered for the truth of the matter asserted depends on the purported use of the evidence provided by the proponent of the like. A like may or may not be offered for the truth of the matter asserted based on the grammatical structure of the proposition liked. For example, if Jane likes a friends post that says Is it just me or is the new James Bond movie the best one yet? the inquiry differs from that inquiry if Jane likes a friends post saying, The new James Bond movie is the best one yet. The former phrasing is a question, while the latter is a declarative. Though both likes may convey the same messagethat Jane likes the new James Bond moviethe assertion that Jane likes the new James Bond movie which stems from the question is an implied assertion, cxxxi while the assertion that Jane likes the movie from the declarative statement is not an implied assertion. cxxxii Whether a party offers a statement for the truth of the matter asserted also hinges on the purpose for which the proponent of the evidence is offering the statement. For example, suppose authorities accuse Jane of involvement in bullying Harry, a fellow student at her high school. One piece

21 of evidence offered in the case is that Jane liked a Facebook post saying, Go figure, Harry raised his hand in class again. What a suck-up. Depending on the purported purpose of the statement, Janes like may or may not be offered for the truth of the matter asserted. If the proponent of the evidence offers Janes like to show that she agreed that Harry is a suck-up, then the statement is being offered for the truth of the matter asserted. However, if the proponent offers the statement to show that Jane had knowledge that other students were bullying Harry, or that Jane knew who Harry was, the statement is not being offered for the truth of the matter asserted, and therefore not hearsay. cxxxiii In short, no overarching answer as to whether a like is being offered for the truth of the matter asserted exists. Some likes may be phrased as questions or offered as circumstantial evidence of knowledge, meaning they are not offered for the truth of the matter asserted and therefore not excludable under the hearsay rule. cxxxiv However, those likes that are phrased in the declarative and offered by the sponsoring party to show support for the assertion that is contained within are offered for the truth of the matter asserted and courts must treat these likes as hearsay. Furthermore, courts must consider statements exhibiting a dual use, one of which would constitute use for the

22 truth of the matter asserted and one that would not, as hearsay, even when their proffered use is for nonhearsay purposes. cxxxv B. Likes Qualify as Adoptive Admissions In many circumstances, a like will constitute hearsay. cxxxvi When a like qualifies as hearsay, courts may still admit the like into evidence when it qualifies for a hearsay exemption. Likes will often qualify for the adoptive admissions exemption. Courts should analyze likes under the adoptive admissions standard for nonverbal conduct. A like fails to fit the analysis for adoptive admission by silence because likes represent a distinct action. At this point, it is helpful to return to the use of hypothetical Facebook user Jane. In order to qualify for the adoptive admission exemption, the context proving that Jane manifested a belief in the content she liked must indicate that Jane heard, understood, and acquiesced in the content. cxxxvii Evidence qualifies as an adoptive admission when it meets the sufficient to support a finding standard of proof. cxxxviii Looking primarily at the context surrounding a particular act of adoption makes the inquiry into whether evidence qualifies for the adoptive admission exemption particularly fact-intensive. However, while some contextual facts will change with each

23 like, likes have certain context in every case that generally will allow them to qualify as adoptive admissions. The circumstances surrounding a statement provide critical information in determining whether a person manifested an adoption or belief in a statement. cxxxix The sufficient to support a finding test means that there may be facts that do not support evidence qualifying as an adoptive admission. Even if all facts other than those which apply to every like point against the like being an adoptive admission, the facts common to all likes provide a sufficient basis to support a finding that a particular like is an adoptive admission. The facts common to all of Janes likesand all of the likes by any other Facebook userare as follows: (1) a person who is logged into Janes Facebook clicks like; (2) the content that is liked and the phrase Jane likes this will appear on Janes newsfeed; cxl (3) Janes Facebook possesses a number of identifying characteristics, including but not limited to, her name, cxli a photo of her, cxlii her place of employment and the schools Jane has attended, cxliii Janes interests, a list of Janes friends, cxliv and indications of places Jane has visited on a map. cxlv The above facts exist every time a person clicks like. Based on these facts common to every like, every Facebook like will achieve the standard required to determine that such

24 evidence constitutes an adoptive admission. Of course, this standard allows for the person objecting to the admission of the evidence as an adoptive admission to offer counter-evidence in support of his or her contention that the like does not qualify for an adoptive admission. cxlvi However, courts should generally admit likes under a sufficient to support a finding standard by virtue of the characteristics shared by every like. In short, under the Federal Rules of Evidence, many, though not all, likes will meet the definition of hearsay. However, likes that do meet the definition of hearsay and would otherwise constitute excludable hearsay nonetheless often should be admissible pursuant to the adoptive admissions exemption to the hearsay rule. IV. CONCLUSION

Social media has become deeply engrained in our day-to-day lives. Facebook logos and advertisements appear on many websites other than Facebook, and Facebook encourages users to connect with other websites through their Facebook. Facebook is not the only important social media website regularly in use. Websites like Twitter and LinkedIn also maintain importance in the way people communicate, and other social media websites will likely be created in the future. Many social media websites have nonverbal content sharing similar to a Facebook like, cxlvii and

25 courts must prepare to address the introduction of this nonverbal internet content into evidence at trial. Courts previously have considered Internet content under the current Federal Rules of Evidence. cxlviii While courts may initially balk at parties using Internet evidence such as a Facebook like, likes and other nonverbal Internet content undoubtedly can and will need to be addressed under the current framework of Federal Rules of Evidence. Courts must embrace or friend cxlix the oncoming increase in the use of Internet evidenceverbal and nonverbaland apply the Federal Rules of Evidence to Internet content the way they would any other verbal or nonverbal content. With the rapid growth and change of the Internet and social media tools, predicting what new technology is coming around the bend is difficult. However, nonverbal Internet communications clearly are covered by the current Federal Rules of Evidence for hearsay.

J.D. Candidate, The University of Iowa College of Law, 2014; B.A., The University of Iowa, 2011. i St. Clair v. Johnnys Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Texas 1999)(holding that any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules.).
ii

See, e.g., Kathrine Minotti, Note, The Advent of Digital

Diaries: Implication of Social Networking Web Sites for the Legal Profession, 60 S.C. L. REV. 1057 (2009)(hereinafter Digital Diaries); Kathleen Elliott Vinson, Note, The Blurred Boundaries of Social Networking in the Legal Field: Just Face It, 41 U. MEM. L. REV. 355 (2010)(hereinafter Blurred Boundaries); Jessica C. Collier, Informal Internet Research: Need, Reliability, and Admissibility, COLORADO LAWYER (2009).
iii

Minotti, Digital Diaries, 60 S.C. L. REV. 1057

(2009)(advocating a change to the Federal Rules of Civil Procedure to accommodate electronic evidence); Vinson, Blurred Boundaries, 41 U. MEM. L. REV. 355 (2010)(calling for written guidelines specifically addressing the use of social media in the legal profession); Black v. Texas, 358 S.W.3d 823, 831 (Tex. Ct. App. 2012)(calling for modernization of the rules of evidence).

iv

Facebook is a website where users can create a personal page

or a page for their business. It is a means of communicating with other people and businesses by sharing photos, videos, events, and other content that a user posts to their page. Facebook Help Center, Timeline, FACEBOOK, http://www.facebook.com/help/467610326601639/ (last visited Feb. 6, 2013).
v

See Bland v. Roberts, 857 F.Supp 2d 599 (E.D. Va.

2012)(discussing the First Amendment implications of a Facebook like); Infra Part B.2.a.
vi

Key Facts, FACEBOOK NEWSROOM,

http://newsroom.fb.com/content/default.aspx?NewsAreaId=22 (last visited January 7, 2013).

vii

Id. Id.

viii

ix

Jeffrey F. Rayport, What is Facebook, Really?, HARVARD BUSINESS

REVIEW BLOG NETWORK, http://blogs.hbr.org/cs/2011/02/what_is_Facebook_is_becoming.ht ml (last visited Sept. 27, 2012).

x

Facebook Developers, Like Button, FACEBOOK,

http://developers.Facebook.com/docs/reference/plugins/like/ (last visited Sept. 27, 2012).

xi

Facebook Help Center, What is News Feed?, FACEBOOK,

http://www.Facebook.com/help/?faq=210346402339221 (last visited Feb. 6, 2013).

xii

Facebook Developers, Like Button, FACEBOOK,

http://developers.Facebook.com/docs/reference/plugins/like/ (last visited Sept. 27, 2012).

xiii

Note that users have control over their privacy settings in

order to limit who may view the content on their Facebook page, including things they like. Facebook Help Center, Privacy, FACEBOOK, http://www.Facebook.com/help/privacy (last visited Sept. 27, 2012).
xiv

Facebook Developers, Like Button, FACEBOOK,

http://developers.Facebook.com/docs/reference/plugins/like/ (last visited Sept. 27, 2012).

xv

Facebook Developers, Like Button, FACEBOOK,

http://developers.Facebook.com/docs/reference/plugins/like/ (last visited Sept. 27, 2012).

xvi

She may also perform the exact same action (clicking like)

in response to her friend Harrys post stating Im happy to have gotten a job today to show support for Harrys success. Therefore, different types of content may prompt Jane to like the posts. Janes intention in clicking like will make a

difference in the hearsay and adoptive admissions analysis. See supra Part II.B.3.; II.B.1.; III.A.3.
xvii

The issue of a mistaken or accidental click resulting in a

like is an authentication issue. While authentication is relevant to hearsay, it is beyond the scope of this Note. This Note only addresses admissibility of previously authenticated likes under the adoptive admissions rule. For a more in depth discussion of authentication standards and issues related to hearsay and Facebook likes, see infra note 129.
xviii

See generally FED. R. EVID. (providing instructions for what

evidence is inadmissible at trial for various purposes).

xix

FED. R. EVID. 802. Federal Rules of Evidence 801, 802, 803, 804, and 807 govern

xx

the use of hearsay. The Federal Rules define hearsay as a statement that: 1) the declarant does not make while testifying at the current trial or hearing and; 2) a party offers in evidence to prove the truth of the matter asserted in the statement. FED. R. EVID. 801(c).
xxi

FED. R. EVID. 801(a). FED. R. EVID. 801, advisory committees note. United States v. Zenni, 492 F. Supp 464, 468 (E.D. Ky.

xxii

xxiii

1980).
xxiv

Id.

xxv

Id. at 467. Id. Id. at 466 (citing Wright v. Tatham, 7 Adolph. & E. 313,

xxvi

xxvii

386, 112 Eng.Rep. 488 (Exch. Ch.1837)).

xxviii

Id.

xxix

Id. at 467. Id. at 478. Id. (citing Morgan, Hearsay Dangers and the Application of

xxx

xxxi

the Hearsay Concept, 62 HARV. L. REV. 177, 214, 217 (1948)).

xxxii

For a variety of cases addressing nonverbal conduct as

hearsay, see, e.g., Clabon v. Texas, 111 S.W.3d 805, 808 (Tex. Ct. App. 2003)(holding that a womans stabbing motions indicating knowledge about a murder was hearsay under the Texas Rules of Evidence); Colvard v. Kentucky, 309 S.W.3d 239, 24748 (Ky. 2010)(holding that pointing in response to a question is hearsay under the Kentucky hearsay rules); United States v. Caro, 569 F.2d 411, 416 n.9 (5th Cir. 1978) (holding that a persons pointing out a vehicle in response to police investigation was assertive conduct and therefore inadmissible hearsay).
xxxiii

Bland v. Roberts, 857 F.Supp 2d 599 (E.D. Va. 2012). Id. at 601.

xxxiv

xxxv

Id.

xxxvi

Id. at 603. Id. Id.

xxxvii

xxxviii

xxxix

Id. at 604.
ET AL.,

xl

See, e.g., G. Edward White

Is it Legal? Are Facebook

Likes Protected by the First Amendment?, VA. L. NEWS & EVENTS (Aug. 13, 2012), http://www.law.virginia.edu/html/news/2012_sum/facebook_like_cas e.htm (discussing why a like should be protected speech); Chris Matyszczyk, Could you get fired for a Facebook like?, CNET (May 6, 2012, 9:03 AM), http://news.cnet.com/8301-17852_357428717-71/could-you-get-fired-for-a-facebook-like/ (discussing potential ramifications of likes on employment); Joanna Stern, Is a Facebook Like Protected Under the First Amendment?, ABC NEWS TECHNOLOGY REVIEW (Aug. 9, 2012, 5:21 PM), http://abcnews.go.com/blogs/technology/2012/08/is-a-facebooklike-protected-under-the-first-amendment/ (discussing whether likes are protected under the First Amendment); David L. Hudson Jr., Like is Unliked, American Bar Association Journal 23 (2012).
xli

Chris Matyszczyk, Could you get fired for a Facebook like?,

CNET (May 6, 2012, 9:03 AM), http://news.cnet.com/8301-17852_357428717-71/could-you-get-fired-for-a-facebook-like/

xlii

Brief for American Civil Liberties Union and ACLU of Virginia

as Amicus Curiae Supporting Plaintiffs-Appellants, Bland v. Roberts, 857 F.Supp.2d 599 (E.D. Va. 2012), at 5, available at http://www.aclu.org/files/assets/bland_v._roberts_appeal___amicus_brief_.pdf.
xliii

Id. Id. at 6.

xliv

xlv

Id. The right to free speech is protected by the First Amendment.

xlvi

U.S. CONST. amend. I. Free speech is generally presumed. [T]he First Amendment bars the government from dictating what we see or read or speak or hear. However, it does not embrace certain categories of speech . . . . Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002). The First Amendment, therefore, generally applies to all statements unless speech falls into an exception. However, that is not the case with the requirement that evidence must be a statement for hearsay purposes.
xlvii

See generally Brief for American Civil Liberties Union and

ACLU of Virginia as Amicus Curiae Supporting PlaintiffsAppellants, Bland v. Roberts, 857 F.Supp.2d 599 (E.D. Va. 2012), available at http://www.aclu.org/files/assets/bland_v._roberts_appeal___amicus_brief_.pdf.

xlviii

Facebooks brief stated that [liking] a Facebook page is

entitled to full First Amendment Protection, and that the Bland court reached a contrary conclusion based on an apparent misunderstanding of the way Facebook works . . . . Joanna Stern, Is a Facebook Like Protected Under the First Amendment?, ABC NEWS TECHNOLOGY REVIEW (Aug. 9, 2012, 5:21 PM), http://abcnews.go.com/blogs/technology/2012/08/is-a-facebooklike-protected-under-the-first-amendment/ (citing Facebooks Amicus Curiae brief).
xlix

Joanna Stern, Is a Facebook Like Protected Under the First

Amendment?, ABC NEWS TECHNOLOGY REVIEW (Aug. 9, 2012, 5:21 PM), http://abcnews.go.com/blogs/technology/2012/08/is-a-facebooklike-protected-under-the-first-amendment/ (citing Facebooks Amicus Curiae brief).
l

David L. Hudson Jr., Like is Unliked, American Bar

Association Journal 23 (2012).

li

Id. Id. The attorney for the fired employees has already filed a

lii

notice of appeal to the 4th Circuit Court of Appeals at Richmond. Id.

liii

United States v. Oguns, 921 F.2d 442 (2d Cir. 1990). United States v. Long, 905 F.2d 1572 (D.C. Cir. 1990).

liv

lv

United States v. Safavian, 435 F. Supp. 2d 36, 4445 (D.C.D.C.

2006) (citing United States v. Oguns, 921 F.2d 442, 44849 (2d Cir. 1990) (internal citation omitted)) (citing United States v. Long, 905 F.2d 1572, 157980 (D.C. Cir. 1990)).
lvi

Oguns, 921 F.2d at 448. Id. Id. at 449 (citing Inc. Pub. Corp. v. Manhattan Magazine,

lvii

lviii

Inc., 616 F.Supp 370, 388 (S.D.N.Y. 1985)).

lix

Id. Id. United States v. Long, 905 F.2d 1572, 1579-80 (D.C. Cir.

lx

lxi

1990).
lxii

Id. at 1579. Id. Id. Id. at 1580. Id. The Court in Long stated that, of the goals of excluding

lxiii

lxiv

lxv

lxvi

hearsay, one main goal of the hearsay rule is to exclude declarations when their veracity cannot be tested through crossexamination. When a declarant does not intend to communicate anything, however, his sincerity is not in question and the need for cross-examination is sharply diminished. Thus, an unintentional message is presumptively more reliable. United

10

States v. Long, 905 F.2d 1572, 1580 (D.C. Cir. 1990). Even though the hearsay dangers of perception, memory, and narration are untested, these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. United States v. Long, 905 F.2d 1572, 1580 (U.S. Court of Appeals, D.C. Circuit 1990) (citing FED. R. EVID. 801, advisory committees note).
lxvii

Long, 905 F.2d at 1580. Rhetorical questions may be treated differently from

lxviii

questions that seek a literal answer. Rhetorical questions may in fact occur in circumstances that show that the question is intended to communicate something. JACK B. WEINSTEIN, WEINSTEINS EVIDENCE MANUAL 1415 (Jack B. Weinstein & Margaret A. Berger eds. Publication 819 Release 24 2011) (citing United States v. Summers, 414 F.3d 1287, 1300 (10th Cir. 2005)).
lxix

FED. R. EVID. 801. FED. R. EVID. 801(b). The delcarant requirement dictates that a statement must be

lxx

lxxi

made by a human being as opposed to a statement or image generated by a machine, which does not constitute hearsay. Compare United States v. Hamilton, 413 F.3d 1138, 1142 (10th Cir. 2005)(holding a computer generated header does not meet the definition of declarant), and United States v. Khorozian, 333

11

F.3d 498, 506 (3d Cir. 2003)(stating that a statement is something uttered by a person, so nothing said by a machine . . . is hearsay)(internal quotation marks omitted), and United States v. Washington, 498 F.3d 225, 231 (4th Cir. 2007)(holding that only a person may be a declarant and make a statement), with Black v. Texas, 358 S.W.3d 823, 831 (Tex. Ct. App. 2012)(holding that text messages, though electronic, were produced by human thought and action, making them hearsay).
lxxii

FED. R. EVID. 801(c)(2). FED. R. EVID. 801. FED. R. EVID. 801(c), advisory committees note. Id. United States v. Reynolds, 715 F.2d 99, 103 (3d Cir. 1983). Id. For example, a party may offer a statement by a witness

lxxiii

lxxiv

lxxv

lxxvi

lxxvii

lxxviii

that the witnesss friend told him she had been assaulted for the truth that the friend was in fact assaulted or to show what the friend did after the assault. See State v. Richcreek, 964 N.E.2d 442, 51112 (Ohio Ct. App. 2011)(discussing dual use).
lxxix

State v. Richcreek, 964 N.E.2d 442, 516 (Ohio Ct. App.

2011).
lxxx

Id. Id.

lxxxi

12

lxxxii

United States v. Reynolds, 715 F.2d 99, 103 (3d Cir. 1983). Id. at 104. Id. Id. at 101. FED. R. EVID. 801(c); supra note 20 and accompanying text. FED. R. EVID. 801; supra note 20 and accompanying text. FED. R. EVID. 802.

lxxxiii

lxxxiv

lxxxv

lxxxvi

lxxxvii

lxxxviii

lxxxix

An exemption means that a statement is considered not

hearsay. FED. R. EVID. 801(d). Exemptions contained in 801(d) include [s]everal types of statements which would otherwise literally fall within the definition [but] are expressly excluded from it[.] FED. R. EVID. 801(d), advisory committees note. In contrast, an exception means that the statement is considered hearsay but is allowed into evidence based on other reasoning that overcomes the rationale for excluding hearsay evidence. See generally, FED. R. EVID. 803; FED. R. EVID. 804; FED. R. EVID. 807. However, the differences between an exception to hearsay and an exemption from hearsay are not relevant to this Note. This difference is not relevant because this Note only examines one exemption to the hearsay rule. Therefore, differentiating between which exceptions may apply and which exemptions may apply is beyond the scope of this Note. However, it is relevant to this Note to recognize that accepting evidence

13

under an exemption classifies the evidence as nonhearsay. FED. R. EVID. 801(d). The results of qualifying for an exemption from hearsay and qualifying for an exception to hearsay are the same: the evidence is admissible. FED. R. EVID. 801(d); FED. R. EVID. 803; FED. R. EVID. 804; FED. R. EVID. 807.
xc

FED. R. EVID. 801(d)(2)(b). Both rules rely on the definition of statement in Rule

xci

801(a), as both the hearsay rule and the adoptive admissions exemption are part of Rule 801. FED. R. EVID. 801.
xcii

FED. R. EVID. 801, reporters comment on restyled Rule 801. Id. This requirement is illustrated by the title of 802. FED. R.

xciii

xciv

EVID. 802. The Advisory Committee updated the rules to eliminate reference to admissions in the rule, opting instead to use the terminology Opposing Party Statement as the heading for Rule 801 in order to clarify that the statements introduced under this exemption need not be adverse to a partys interest as long as they were simply made by the party against whom they are being offered. FED. R. EVID. 801; FED. R. EVID. 801, reporters comment on restyled rule 801.
xcv

United States v. Joshi, 896 F.2d 1303, 1311 (11th Cir. 1990). Id. Id.

xcvi

xcvii

14

xcviii

Id.

xcix

Id. (emphasis added).

Id. at 1305. Id. Id. at 1312. Id. United States v. Price, 516 F.3d 597 (7th Cir. 2008). Id. at 602. Id. Id. at 607. Id.

ci

cii

ciii

civ

cv

cvi

cvii

cviii

cix

U.S. v. Safavian, 435 F.Supp.2d 36, 38 (D.C.D.C. 2006). Id. at 42-44. Id. at 43 (citing FED. R. EVID. 801(d)(2)(b)). Sea-Land Serv., Inc. v. Lozen Intern., LLC, 285 F.3d 808 (9th

cx

cxi

cxii

Cir. 2002).
cxiii

Id. at 821. Id. (quoting Fed. R. Evid. 801(d)(2)(B)).

cxiv

cxv

FED. R. EVID. 801; supra note 20 and accompanying text. FED. R. EVID. 801(a). State v. Davis, 854 A.2d 67, 73 (Conn. App. Ct. 2004). See, e.g., State v. Burney, 954 A.2d 793, 80204 (Conn.

cxvi

cxvii

cxviii

2008)(outlining holdings in Connecticut and other jurisdictions

15

that a persons demeanor is not hearsay); U.S. v. Butler, 763 F.2d 11, 14 (1st Cir. 1985) (holding that defendants girlfriends action of leaving his house in her caras an informant had predicted she wouldwas not assertive conduct because there was no evidence that her conduct was intended as an assertion, and was instead just ordinary conduct); U.S. v. Jeffries, 457 Fed. Appx. 471, 483 (6th Cir. 2012) (holding that a persons mere possession of cocaine was not intended as an assertion and therefore was not hearsay).
cxix

Facebook Developers, Like Button, FACEBOOK,

http://developers.Facebook.com/docs/reference/plugins/like/ (last visited Sept. 27, 2012)(explaining that Like is a way to give positive feedback and that a like is a way or to let someone know that you enjoy something without leaving a comment.).
cxx

Facebook Developers, Like Button, FACEBOOK,

http://developers.Facebook.com/docs/reference/plugins/like/ (last visited Sept. 27, 2012).

cxxi

Supra Part II.B.1.a. The ACLU cites the common understanding of the purpose of a

cxxii

Facebook like in its amicus curiae brief for the appeal of Bland v. Roberts. Supra notes 4246 and accompanying text.

16

cxxiii

For a discussion of the standard of proof for each

component of the hearsay rule, see infra note 129.

cxxiv

David L. Hudson Jr., Like is Unliked, American Bar

Association Journal 23 (2012).

cxxv

Id. Id. Infra note 129. Supra Part II.b.2.

cxxvi

cxxvii

cxxviii

cxxix

The Federal Rules of Evidence address different possible

modes of authentication under Rule 901. FED. R. EVID. 901. The standard of proof for authenticating evidence is listed in both Rule 901 and Rule 104. FED. R. EVID. 901; FED. R. EVID. 104. The question of whether a piece of evidence has been authenticated involves a preliminary question under Rule 104. FED. R. EVID. 104. A preliminary question is a question that must be answered in order to determine the purpose for which the evidence is being offered. For example, if a letter purporting to be from Y is relied upon to establish admission by him, it has no probative value unless Y wrote or authorized it. FED. R. EVID. 104(b), advisory committees note. The question of whether the like button was clicked by our hypothetical Facebook user Jane is a question of fact which must be answered in order to make the like relevant, similar to the offering of a letter against Y.

17

Therefore, the court would consider this issue under Federal Rule of Evidence 104(b). Rule 104(b) states that [w]hen the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. FED. R. EVID. 104(b). Therefore, in order for a like to be authenticated, the judge need not find that the like button was clicked by the person against whom the like is being offered beyond a reasonable doubt or even by a preponderance of the evidence. The judge must only find that there is evidence sufficient to support a finding by a jury that Jane clicked like. Jane is also allowed to present evidence rebutting the fact that she clicked like. Some commentators have stressed that social media evidence presents unique difficulties. See Scott R. Grubman & Robert H. Snyder, Web 2.0 Crashes Through the Courthouse Door: Legal and Ethical Issues Related to the Discoverability and Admissibility of Social Networking Evidence, 37 Rutgers Computer & Tech. L.J. 156 (2011)(stating that web evidence provides unique difficulties); Jessica C. Collier, Informal Internet Research: Need, Reliability, and Admissibility, 38-AUG Colorado Lawyer 111

18

(2009) (listing methods of authentication for internet evidence); Vinson, Blurred Boundaries, 41 U. MEM. L. REV. 355 (2010)(calling for written guidelines specifically addressing the use of social media in the legal profession). However, in the case of Facebook likes, courts should hold that, since Janes like is clicked by someone who has accessed Janes private Facebook, which appears with Janes name on a page displaying Janes photo, contact information, and other personally identifying features, the sufficient to support a finding standard is preliminarily met and likes are generally admissible, subject to rebuttal evidence on authentication if Jane can cast doubt on the authenticity of the like. This inquiry into determining whether a like is properly authenticated is similar to the inquiry required to determine whether likes constitute an adoptive admission. Infra Part III.B.
cxxx

If the unusual case ever arises where the like button is

clicked while a witness is on the witness stand and then offered during that same trial against the party who clicked like while on the stand, the analysis in this Note will not apply. This analysis would not apply because the like would not constitute hearsay under Federal Rule of Evidence 801. For an interesting commentary on the potential use and dangers of

19

access to social networking relating to the courtroom in areas other than the admission of evidence, see Marcy Zora, The Real Social Network: How Jurors Use of Social Media and Smart Phones Affects A Defendants Sixth Amendment Rights, 2012 U. ILL. L. REV. 557 (2012).
cxxxi

United States v. Long, 905 F.2d 1572, 1580 (D.C. Cir. 1990);

See also supra Part II.A.1.b. (discussing the assertion requirement for statements).
cxxxii

Since both likes convey the same message, it may seem

arbitrary to draw the line based on grammatical structure. However, courts have commonly relied on grammatical structure to determine if a statement is being offered for the truth of the matter asserted, holding that certain types of grammatical structures inherently have no truth matter to be asserted. Supra Part II.B.1.b.
cxxxiii

See United States v. Oguns, 921 F.2d 442, 448 (2d Cir.

1990) (holding that statements offered as circumstantial evidence of knowledge is not offered for the truth of the matter asserted); see also supra Part II.B.3. (same). In the case that the evidence is being offered for Janes knowledge of other students bullying Harry, it would be offered as circumstantial evidence of knowledge, similar to the question in United States v. Oguns. Oguns, 921 F.2d at 448.

20

cxxxiv

Of course, likes which are not excludable as hearsay may

or may not be excluded from evidence on other grounds such as character evidence or relevance. This Note only addresses the application of the hearsay rule to likes, and does not contend that likes do or do not qualify for exclusion from evidence under any other Federal Rule of Evidence.
cxxxv

See State v. Richcreek, 964 N.E.2d 442, 516 (Ohio Ct. App.

2011)(discussing the proper use of a statement that has dual use); see also supra notes 79-81 and accompanying text (same).
cxxxvi

See supra Part III.A. (explaining why a like generally

constitutes hearsay).
cxxxvii

United States v. Joshi, 896 F.2d 1303, 1311 (11th Cir.

1990); see supra Part II.C.1. (explaining how nonverbal conduct may constitute a statement).
cxxxviii

FED. R. EVID. 901; FED. R. EVID. 104; supra note 129.

cxxxix

FED. R. EVID. 801(d)(2)(b). See supra Part II.C. (explaining

the requirements for the adoptive admissions exemption).

cxl

Facebook Developers, Like Button, FACEBOOK,

http://developers.Facebook.com/docs/reference/plugins/like/ (last visited Nov. 2, 2012).

cxli

Facebook Help Center, Update Your Basic Info, Facebook,

http://www.facebook.com/help/334656726616576/ (last visited Nov. 2, 2012).

21

cxlii

Facebook Developers, Profile Picture & Cover Photo,

Facebook, http://www.facebook.com/help/388305657884730/ (last visited Nov. 2, 2012).

cxliii

Facebook Help Center, Update Your Basic Info, Facebook,

http://www.facebook.com/help/334656726616576/ (last visited Nov. 2, 2012).

cxliv

Facebook Help Center, Who can see the friends section of my

timeline?, Facebook, http://www.facebook.com/help/115450405225661/?q=friends%20sectio n%20of%20timeline&sid=0rMNX2nd1fDcfY73O (last visited Nov. 2, 2012).

cxlv

Facebook Developers, Location Tagging, Facebook,

https://developers.facebook.com/docs/opengraph/location_tagging/ (last visited Nov. 2, 2012).

cxlvi

For further discussion of the sufficient to support a

finding standard in the context of authentication, see supra note 129.

cxlvii

For example, the analysis used in this Note would also be

applicable to Re-tweets on Twitter.

cxlviii

See supra Part II.C.2 for a discussion of court precedent

dealing with forwarded e-mails.

cxlix

The term friending or friended refers to the action of

accepting or requesting another Facebook user as your Facebook

22

friend. For example, Jane may say, I friended Harry yesterday. Or, in certain dramatic circumstances, I de-friended Harry yesterday, meaning that Jane has removed Harry from her list of Facebook friends. Facebook Help Center, Finding Friends, FACEBOOK, http://www.facebook.com/help/336320879782850/(last visited Nov. 1, 2012).