Facebook, Twitter, and the uncertain future of present sense impressions.

• Author: Bellin, Jeffrey

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legal framework governing the admission of out-of-court statements in American trials is premised on increasingly outdated communication norms.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

INTRODUCTION I. THE TENSION BETWEEN THE MODERN PRESENT SENSE IMPRESSION EXCEPTION AND ITS HISTORICAL RATIONALE II. PRESENT SENSE IMPRESSIONS: PAST AND FUTURE A. The Limited Significance of (Oral) Present Sense Impressions B. The Emerging Salience of Electronic Present Sense Impressions C. Vanishing Constitutional Limits on the Admission of Present Sense Impressions III. REALIGNING RULE AND RATIONALE TO EXCLUDE UNRELIABLE PRESENT SENSE IMPRESSIONS A. The Potential Unreliability of Electronic Present Sense Impressions B. Excluding Unreliable Present Sense Impressions Through a Percipient Witness Requirement CONCLUSION INTRODUCTION

A breathtaking transformation in communication practices has unfolded over the past decade, and these changes seem more likely to accelerate than abate in the coming years. (1) When communication norms change, it follows that evidence doctrine, and particularly the hearsay rules that control the admission of out-of-court statements, must change as well. New methods of communicating and manners of speaking require renewed assessment of the categories of statements traditionally excepted from the hearsay prohibition. In the coming years, venerable hearsay exceptions will need to be revised to better suit the modern era. For one exception, that time is already here.

The "present sense impression" exception to the hearsay prohibition is uniquely tethered to an oral, as opposed to electronic, communication norm. In fact, absent a previously unassailable assumption that statements describing contemporaneous events could only be communicated orally, America's evidence codes would probably never have adopted this once-controversial exception.

Advocates of a hearsay exception for present sense impressions did not disguise their assumption that people would only communicate about unfolding events orally. Instead they exploited it. As the exception tentatively emerged from the common law fog of res gestae, its proponents disarmed critics by emphasizing the inevitability of corroboration. (2) In a time before smartphones or Twitter, a person who uttered a statement about an unfolding event (i.e., a present sense impression) would invariably be speaking to someone nearby who was also able to observe the same event. One of those persons would, of necessity, present the statement at trial and simultaneously corroborate its substance.

The seminal present sense impression case vividly illustrates these circumstances. In Houston Oxygen Co. v. Davis, a Texas appellate court famously concluded that a bystander's out-of-court comment--that the occupants of a passing car "must [be] drunk" and will end up "somewhere on the road wrecked if they kept that rate of speed up"--was admissible even though it was hearsay. (3) The court emphasized that the close temporal connection between the statement and the event it described minimized the dangers of misrecollection and in sincerity. (4) The court also stressed that such statements "will usually be made to another (the witness who reports it) who would have equal opportunities to observe and hence to check a misstatement." (5) True to form, the out-of-court statement in Houston Oxygen had been offered at trial through the testimony of both the bystander who originally uttered it and her two companions. (6) All three of these witnesses were able to testify and be cross-examined about the alleged reckless driving that gave rise to the statement's utterance. (7)

In modern times, the assumption that a present sense impression will inevitably, or even usually, be corroborated by live witness testimony no longer holds. Thanks to technological wizardry and changing social norms, present sense impressions are not only becoming more widely available for use in litigation, but will commonly be both uncorroborated and of dubious reliability. (8) The phenomenon's leading edge consists of the contemporaneous observations broadcast electronically, as opposed to orally, on Internet sites like Twitter and Facebook, as well as via text messaging.

Twitter could be the brainchild of mischievous evidence scholars. As described on its website,

Twitter is a real-time information network powered by people all around the world that lets you share and discover what's happening now. Twitter asks "what's happening" and makes the answer spread across the globe to millions, immediately. (9) While of course not the intention of Twitter's creators, the service is, in essence, a vast electronic present sense impression (e-PSI) generator, constantly churning out admissible out-of-court statements. The same characterization applies to Facebook, a wildly popular social networking site that continually broadcasts autobiographical "status updates": short summaries of what users are currently seeing, doing, and feeling. (10)

Perhaps the most significant aspect of these modern developments is that under current evidence doctrine, inherent flaws in the reliability of uncorroborated e-PSIs will not preclude the statements' admissibility. Although the early champions and ultimate drafters of the modern present sense impression exception stressed that a percipient witness would corroborate the substance of statements admitted at trial, they failed to include any such corroboration requirement in the rule itself. (11) Consequently, modern courts generally decline to require this (or any) type of corroboration as a condition of admissibility. (12) All that is required for a statement to qualify as a present sense impression is contemporaneity, a requirement easily satisfied in the digital age. (13) In addition, the Supreme Court recently repudiated the constitutional doctrine that traditionally protected criminal defendants from the introduction of unreliable, informal ("nontestimonial") hearsay. (14) This means that any party, including the prosecution in a criminal case, can introduce an e-PSI without providing a live witness or other form of corroboration as to the event the statement describes. The modern day analogue of Houston Oxygen could be a reckless-driving prosecution of pop star Justin Bieber in which the prosecution hinged its case on a pre-crash "tweet": (15) "I just raced @justinbieber down Ventura in his Ferrari." (16)

Evidence law's most dashing champion, Sir Walter Raleigh, famously scorned the "paper accusation" admitted against him in his trial for treason. (17) Imagine Raleigh's reaction to an incriminatory Facebook status update,

Lord Cobham Is wondering why Sir Walter is flying the Spanish flag? LOL (18)

or tweet,

Lord Cobham 5 minutes ago

Talking treason over beers with @SirWalter, don't tell the King!

"'What proof is this?'" indeed. (19)

Questions about the reliability of present sense impressions are not new. (20) Dean Wigmore famously stalled judicial acceptance of the exception for decades, (21) and subsequent commentators echo Wigmore's skepticism that contemporaneity establishes reliability. (22) Until recently, however, the movement to abolish the present sense impression exception--if one can even be said to exist--lacked urgency. While the exception, now enshrined in the Federal Rules of Evidence and the overwhelming majority of state evidence codes, (23) has always been vulnerable to criticism, there was little reason to believe that present sense impressions played any significant role in American trials, either in terms of their quantity or potency as evidence. (24) In light of modern developments, both aspects of the relative insignificance of present sense impressions are now receding. (25)

With courts facing an approaching wave of electronic present sense impressions of questionable reliability, it is time to revisit the debate as to the merits of the exception that would allow their admission. To the degree the justification for the exception depends, as its initial proponents claimed, (26) on corroboration by a percipient witness, (27) the exception must now either be narrowed to circumstances where such corroboration exists (excluding many e-PSIs) or justified on other grounds. In short, scholars and courts must finally resolve the conundrum that haunts the present sense impression hearsay exception. If corroboration by a percipient witness is a significant justification for the exception, why is it not a prerequisite to admission?

This Article relocates this unfinished debate in the modern context that urgently requires its resolution. Part I explores the evolution of the modern present sense impression exception to the hearsay rule and highlights the central role of corroboration by a percipient witness in the advocacy leading up to the adoption of the exception. Part II explains how the present sense impression exception flourished despite the unresolved ambiguity at its core and argues that modern developments, such as the widespread use of Facebook, Twitter, and text...