In the U.S. federal court system, when a witness is allowed to testify to someone’s reputation, that witness may only share knowledge based on in-person interactions.
But now that so much communication and “reputation management” happens online, shouldn’t witnesses be permitted to testify to someone’s character even if they only know that person through social media?
Elon University School of Law Professor Catherine Ross Dunham believes it’s time to consider the possibility – and her forthcoming essay in the Temple Law Review Online has been honored for suggesting a fresh approach to the question.
“Reputation Evidence in the Age of Instagram” has been recognized as the 2020 Edward D. Ohlbaum Paper in Advocacy at Temple University’s Beasley School of Law. Ohlbaum was a national leader in trial advocacy education and director of advocacy programs at Temple University prior to his death in March of 2014
Articles on an advocacy or advocacy-and-law related subject were judged on their originality, usefulness to advocates and students of advocacy, and “reflection of the values Professor Ohlbaum exhibited and taught.”
In her essay, Dunham traces the history of the Federal Rules of Evidence and how, for some defendants, having others vouch for character can be crucial at trial. But the rules set forth by the federal courts are based on centuries-old notions that you can only know someone when you live together in the same physical community or work together in the same profession.
“In person” is key.
And if federal courts choose not to consider a reputation from social media – which can be crafted and stage-managed just like in-person interactions – then Dunham believes it may be time to disallow reputation testimony at all.
“Courts have always questioned the relevance and reliability of reputation evidence but have deferred those concerns over the greater value of reputation evidence in those situations where it is allowed by the Rules and most needed by the litigants,” Dunham writes in her essay. “The same understanding of the value of reputational evidence should be extended to reputation evidence that flows from the modern construct of community – the social media community – or reputation evidence as a proxy for character should ‘go the way of the Dodo,’ being outpaced by modern life.”
Dunham said she wanted to write on the topic after reading numerous cases that discussed an outmoded concept of reputation that relies on the idea that you can only know someone through in-person interactions.
“Even before COVID, we had moved away from interacting in-person, allowing social media and other Internet-based communications to form the day-to-day of our social and business interactions,” she said. “Why, then, did the Federal Rules of Evidence still rely on a construct of reputation evidence based on how our physical neighbors perceived our everyday actions?”
Dunham’s scholarship focuses on the re-evaluation of evidentiary and procedural concepts in light of changed social norms and practices. She has written about personal jurisdiction based on Internet contacts, workplace gender discrimination based on workplaces that reward male-dominated cultures and traditional family structures, and evidence paradigms built around social contexts that are centuries old.
Dunham said she is intrigued by the tensions that exist between modern life and developed law, and that she challenges students to always question the rationale behind a given rule or concept. She noted that her essay’s focus matched not only the parameters of the Temple Law Review’s competition but also the legacy of its namesake.
“Professor Ohlbaum was a renowned scholar who left behind a catalog of contributions to advocacy and evidence law,” Dunham said. “I worked with Eddie through the National Institute for Trial Advocacy in the early days of my teaching career and learned so much from him. He was a skilled teacher and thinker who brought new clarity to old ideas – and I am honored to have written a piece which reflects his legacy.”
About Elon Law:
Elon University School of Law in Greensboro, North Carolina, is the preeminent school for engaged and experiential learning in law. With a focus on learning by doing, it integrates traditional classroom instruction with course-connected, full-time residencies-in-practice in a logically sequenced program of transformational professional preparation. Elon Law’s groundbreaking approach is accomplished in 2.5 years, which provides distinctive value by lowering tuition, reducing student loan debt, and permitting graduates early entry into their legal careers.