Discover how proposed amendments to FRE 801(d)(1)(A) could allow online statements as substantive evidence in court, transforming the way litigators handle digital content.
Last Updated December 2025
Want the CLE-style version? Watch the full BARBRI webinar for the panel discussion, cross-ex examples, and foundational strategy.
Online statements have long been fertile ground for impeachment, website claims that no one remembers writing, job postings that contradict HR’s testimony, a social media post that tells a starkly different story than what appears on the stand. But under the current Federal Rule of Evidence 801(d)(1)(A), these unsworn statements can rarely be used for their truth.
A proposed amendment to the rule may soon change that landscape entirely. If adopted, it would allow prior inconsistent statements — including online statements — to be admitted substantively once the witness testifies and is subject to cross-examination.
For litigators, this means the evidentiary battlefield shifts. The question will no longer be whether an online statement is hearsay. Instead, the focus moves to whether the evidence was preserved correctly, authenticated properly, and attributed reliably. In other words: how the online material was collected will matter as much as what it says.
The Internet Is a Witness
Modern litigation routinely involves statements that live outside formal testimony. Companies update their websites. Individuals edit or delete posts. Terms and conditions evolve. Yet the earlier versions of those statements often surface as critical evidence.
A prior inconsistent statement—whether found in a deposition transcript or on an archived webpage—plays the same role: it reveals what the witness or entity said at an earlier point in time. Jurors naturally assess credibility by comparing these versions of events. The proposed amendment aligns the rule with that reality by removing the oath requirement and allowing these statements to be considered for their truth.
If that happens, online evidence will carry more weight at trial, and its volatility becomes a liability. Websites change without notice, posts disappear, and personalization can alter how a page appears to different users. This makes defensible, precise preservation essential—not just for impeachment, but for admissibility.
Rule 801(d)(1)(A) currently allows prior inconsistent statements to be treated as “not hearsay” only when made under oath in a proceeding. Online statements almost never meet that standard.
The proposed amendment would eliminate the oath requirement. Once the witness testifies and is subject to cross, prior inconsistent statements may be admitted.
This adjustment does not automatically admit every online statement offered. It simply removes the hearsay barrier. The focus moves to proving the accuracy, authenticity, and attribution of the online material, as well as whether the inconsistency is genuine. In practical terms, the amendment expands the category of online material that litigators may seek to introduce substantively, but only if the necessary foundation is established.
The amendment recognizes that credibility is shaped by what witnesses say outside the courtroom. Jurors naturally compare those earlier statements to testimony at trial, but the current oath requirement limits how much they can rely on them. Removing that requirement brings the rule in line with how credibility is actually assessed. If a witness takes the stand and the prior statement is authenticated, the jury should be able to consider it for its truth. All existing safeguards for accuracy and reliability remain; the amendment simply allows the factfinder to evaluate the full context.
Litigators should think broadly. Online statements commonly appear in:
Any of these may form a prior inconsistent statement once the witness takes the stand.
Contradictions arise across commercial, employment, consumer protection, IP, securities, and class action matters. The pattern is almost always the same: what was said online vs. what is said under oath.
Under the proposed amendment to FRE 801(d)(1)(A), these inconsistencies are no longer limited to impeachment—they may be admissible for their truth once the witness testifies and is subject to cross.
If online statements may soon be substantive evidence, the manner of collection becomes central to admissibility. A disciplined workflow reduces challenges and strengthens the foundation for authentication:
With the proposed amendment removing the hearsay barrier, authentication becomes the real gatekeeper. When it comes to authenticating web evidence, litigators should look to Federal Rules of Evidence (FRE) 901 and 902.
FRE 901 requires a showing that the online material is what the proponent claims it is. For web evidence, that means demonstrating complete context, accurate metadata, and a reliable process for capture. In many cases, this still requires a live witness who can explain when the material was collected, from where, and how.
FRE 902(13) offers a more efficient path. It allows certain machine-generated records to be self-authenticated through certification if the underlying process reliably produces accurate results and the proponent provides proper notice. This is where purpose-built tools matter. When evidence is collected through a controlled, automated system rather than a user’s device, the record is far easier to authenticate under 902(13) and less vulnerable to chain-of-custody challenges.
This becomes especially important under the amendment. If online statements may come in substantively, litigators will need to show not only what the statement said but that it was captured accurately and preserved without alteration. A defensible, consistent method of collection is no longer a convenience; it is a foundational requirement.
For Page Vault’s practical breakdown of authentication, see our blog.
If the amendment to FRE 801(d)(1)(A) is adopted, prior inconsistent statements that once appeared online—but were later changed or removed—may be admissible as substantive evidence once the witness testifies and is subject to cross. That makes archived webpages powerful tools to show what a company or person actually said before the story changed.
But archived pages from the Wayback Machine are not self-authenticating.. They still require a Rule 901 foundation (and sometimes support under FRE 902(13)).
Courts generally allow Wayback evidence only when the proponent can show:
Bottom line: Wayback is an excellent research and sourcing tool—but it is not a substitute for proper collection or authentication. Treat Wayback as your starting point; treat authentication as your burden.
For specifics, read our Wayback Machine article.
Litigators frequently encounter avoidable issues that undermine online evidence:
With the amendment expanding the universe of potentially admissible online statements, these pitfalls become even more consequential.
If the amendment passes, online evidence will be scrutinized more closely, not less. Page Vault’s system was built for that environment. By using a cloud-based virtual machine to collect content—rather than the user’s device—the platform keeps the attorney out of the chain of custody and generates comprehensive metadata, including timestamps, URLs, and hash values.
Because the capture is machine-generated, it aligns naturally with FRE 902(13)’s self-authentication framework, reducing the need for live testimony and lowering the risk of foundational challenges.
For a much deeper dive into how prior inconsistent statements and online evidence intersect with evolving hearsay rules, you can watch the full BARBRI CLE on impeachment and the proposed amendments to FRE 801(d)(1)(A). This 90-minute CLE was delivered live on November 17, 2025 and is now available on demand and is eligible in most states for 1.5 CLE credits.
The panel includes seasoned practitioners such as Chris Huber (Attorney, The Huber Law Firm LLC), Charles B. Molster (Founder, The Law Offices of Charles B. Molster III, PLLC), and Alex Sappington (CO-CEO, Page Vault)— all walking through practical approaches to preserving, authenticating, and using prior inconsistent statements captured from archived webpages and dynamic social content.
