Facebook, Twitter, and the Uncertain Future of Present Sense Impressions

45 Pages Posted: 27 Mar 2011 Last revised: 17 May 2014

Jeffrey Bellin

William & Mary Law School

Date Written: March 22, 2011

Abstract

The intricate legal framework governing the admission of out-of-court statements in American trials is premised on increasingly outdated communication norms. Nowhere is this more apparent than with the hearsay exception for “present sense impressions.” Changing communication practices typified by interactions on social media web sites like Facebook and Twitter herald the arrival of a previously uncontemplated – and uniquely unreliable – breed of present sense impressions. This Article contends that the indiscriminate admission of these electronic present sense impressions (e-PSIs) is both normatively undesirable and inconsistent with the traditional rationale for the present sense impression exception. It proposes a reform to the exception that would exclude unreliable e-PSIs while simultaneously realigning the modern rule with its historical rationale. In so doing, the Article sounds an early warning to courts and legislators regarding similar challenges on the horizon, as modern communication norms continue to evolve beyond the contemplation of the drafters of the hearsay rules.

Keywords: Facebook, Twitter, MySpace, Hearsay, Social Media, Present Sense Impression, Crawford, Electronic Communication, Internet, 803, Excited Utterance, Texting, Text Messages, Iphone

Suggested Citation

Bellin, Jeffrey, Facebook, Twitter, and the Uncertain Future of Present Sense Impressions (March 22, 2011). University of Pennsylvania Law Review, Vol. 160, p. 331, 2012; SMU Dedman School of Law Legal Studies Research Paper No. 77. Available at SSRN: https://ssrn.com/abstract=1792786

Jeffrey Bellin (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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