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

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legal framework governing the admission of out-of-court statements in American trials is premised on increasingly outdated communication norms.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