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

University of Pennsylvania Law Review

Volumn 160, Issue 2, 2011, Pages 331-375

  Bellin, Jeffrey ^a  

^a Southern Methodist University   (United States)

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EID: 84855293990     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Article

References (241)

1. See Laurie L. Baughman, Friend Request or Foe? Confirming the Misuse of Internet and Social Networking Sites by Domestic Violence Perpetrators, 19 WIDENER L.J. 933, 933 (2010) (noting that "[s]ocial networking over the Internet has taken the world by storm-revolutionizing the way people communicate by allowing users to publish their private lives on a world stage");
2. Nenagh Kemp, Texting Versus Txtng: Reading and Writing Text Messages, and Links with Other Linguistic Skills, 2 WRITING SYSTEMS RES. 53, 53 (2010) (describing the recent explosion in mobile phone ownership and text messaging, and noting that the average eighteen- to twenty-four-year-old text user sends nearly eight hundred messages a month)
3. Larry D. Rosen et al., The Relationship Between "Textisms" and Formal and Informal Writing Among Young Adults, 37 COMM. RES. 420, 421 (2010) (reporting extensive usage by American teens of text messaging and noting that one study found that almost half of teens can text while blindfolded);
4. Russell L. Weaver, The Fourth Amendment, Privacy and Advancing Technology, 80 MISS. L.J. 1131, 1133-34 (2011) (highlighting the ongoing "revolution in speech technology" brought about by "Internet-based devices like . . . Facebook, MySpace, Twitter and other communica tions technologies");
5. Kirsty Young, Social Ties, Social Networks and the Facebook Experience, 9 INT'L J. EMERGING TECHNOLOGIES & SOC'Y 20, 21 (2011) (describing the "phenomenal growth of Web 2.0 technologies," including Facebook);
6. Joseph Goldstein, 'On Tha Run for Robbin a Bank' and Other Online Postings That Investigators Love, N.Y. TIMES, Mar. 3, 2011, at A25 (reporting on authorities' increasing reliance on online communications for evidence in criminal prosecutions "[a]s "Twitter, Facebook and other forms of public electronic communication embed themselves in people's lives"). For a further discussion of changing communication practices
7. see also FED. R. EVID. 803(1) advisory committee's note (identifying Houston Oxygen as an "[i]llustrative" case for the exception);
8. Commonwealth v. Blackwell, 494 A.2d 426, 432 (Pa. Super. Ct. 1985) (looking to Hou ston Oxygen as the "leading case involving the present sense impression exception");
9. MCCORMICK ON EVIDENCE § 271, at 251 (Kenneth S. Broun ed., 6th ed. 2006) (describing Houston Oxygen as "[t]he case most commonly cited to illustrate judicial recognition of the [present sense impression] exception");
10. James Donald Moorehead, Compromising the Hearsay Rule: The Fallacy of Res Gestae Reliability, 29 LOY. L.A. L. REV. 203, 230 (1995) (identifying Houston Oxygen as the "seminal case in the development of the exception").
11. Hous. Oxygen, 161 S.W.2d at 476-77.
12. See John W. Clark et al., Social Networking and the Contemporary Juror, 47 CRIM. L. BULL. 83, 87 (2011) (reporting the same language from Twitter's "About" page). Twit ter's "About" page is regularly updated, and it no longer includes this precise language.
13. See About Twitter, TWITTER, http://twitter.com/about (last visited Nov. 15, 2011). The description remains accurate, however.
14. Wailin Wong, Internet Connected with Presidential Election Like Never Before, CHI. TRIB., Nov. 6, 2008, at 35 (describing Facebook status updates as "a brief line [of text] that explains what [someone is] doing or thinking").
15. This is a real tweet by celebrity Erik Schrody who tweets under the name "@OGEverlast." OGEverlast, I Just Raced @justinbieber, TWITTER (Aug. 30, 2011), https://twitter.com/#!/OGEverlast/status/108608075778375681 According to news reports, Schrody posted this tweet "moments before Bieber collided with a Honda Civic in Studio City
16. See Justin Bieber Was Racing His Ferrari Before Accident, PEREZ HILTON (Aug. 31, 2011, 6:00 PM), http://perezhilton.com/2011-08-31-justin-bieber-was- racing-ferrari-withhouse-of-pain-singer-everlast-in-los-angeles. From other reports of the event, any connection between the purported street race and Bieber's collision appears questionable.
17. See Lorenzo Benet & Alison Schwartz, Justin Bieber Crashes His Ferrari, PEOPLE (Aug. 31, 2011, 7:55 AM), http://www.people.com/people/article/ 0,20524401,00.html (indicating that the other vehicle involved crashed into Bieber's car).
18. DAVID JARDINE, Trial of Sir Walter Raleigh, in 1 CRIMINAL TRIALS 400, 418 (London, Charles Knight 1832);
19. see also 30 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 6342, at 258 (2010) (describing Raleigh as "[a] character as mighty as any Shakespeare placed upon the Elizabethan stage").
20. Jon R. Waltz, The Present Sense Impression Exception to the Rule Against Hearsay: Origins and Attributes, 66 IOWA L. REV. 869, 875 (1981) (describing John Henry Wigmore's opposition to the present sense impression exception);
21. Steven Zeidman, Who Needs an Evidence Code?: The New York Court of Appeals's Radical Re-Evaluation of Hearsay, 21 CARDOZO L. REV. 211, 236 (1999) (noting that "questions persist about the underlying rationale" for the present sense impression exception).
22. See EDMUND M. MORGAN, BASIC PROBLEMS OF EVIDENCE 342 (1962) (observing, prior to the adoption of the Federal Rules, that "since Wigmore's great treatise became available . . . his theory [regarding excited utterances] has been generally accepted and Thayer's theory [on present sense impressions] neglected" by the courts);
23. JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1757, at 238 (James H. Chadbourn ed., 1976) ("To admit hearsay testimony simply because it was uttered at the time something else was going on is to introduce an arbitrary and unreasoned test and to remove all limits of principle . . . .");
24. Edward J. Imwinkelried, The Need to Resurrect the Present Sense Impression Hearsay Exception: A Relapse in Hearsay Policy, 52 HOW. L.J. 319, 327-28 (2009) ("By and large, the courts have found Wigmore's position persuasive. Until the adoption of the Federal Rules of Evidence, only a few jurisdictions recognized the present sense impression.").
25. See State v. Carpenter, 773 S.W.2d 1, 9 n.3 (Tenn. Crim. App. 1989) ("The present sense impression exception, although embraced by the Federal Rules of Evidence, has been criticized by authorities as having virtually no indicium of reliability.");
26. Stanley A. Goldman, Not So "Firmly Rooted": Exceptions to the Confrontation Clause, 66 N.C. L. REV. 1, 28-30 (1987) (discussing flaws in the assumptions about cognitive processes that underlie the reliability argument);
27. See FED. R. EVID. 803(1);
28. Douglas D. McFarland, Present Sense Impressions Cannot Live in the Past, 28 FLA. ST. U. L. REV. 907, 929 & n.131, 932-33 (2001) (noting that the present sense impression exception has been "accepted by the great majority of states" and providing an appendix that details the laws in each state).
29. See Mirjan Damaška, Of Hearsay and Its Analogues, 76 MINN. L. REV. 425, 434-39 (1992) (discussing analogues to hearsay prohibition in Roman law dating back to "the twilight of the Middle Ages, several centuries before English judges articulated the hearsay rule").
30. FED. R. EVID. 803(1). The rule allows a "slight lapse" following the event to allow "enough flexibility to reach statements made a moment after" the described event without providing enough time "to allow reflection, which would raise doubts about trustworthiness
31. CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE § 8.35, at 836 (4th ed. 2009); accord FED. R. EVID. 803(1) advisory committee's note ("[I]n many, if not most, instances precise contemporaneity is not possible, and hence a slight lapse is allowable."). As part of the Federal Rules restyling project, Rule 803(1)'s language has been tweaked slightly, but no change in substance is intended.
32. See FED. R. EVID. 803(1) (Proposed Draft 2010) (defining a present sense impression as a "statement describing or explaining an event or condition, made while or immediately after the declarant perceived it").
33. A proponent of a present sense impression must establish by a preponderance of the evidence that the statement satisfies both the immediacy and personal knowledge prerequisites for admission. See, e.g., Bemis v. Edwards, 45 F.3d 1369, 1373 (9th Cir. 1995).
34. The requirement of personal knowledge stems from Rule 602, which requires that all witness testimony be supported by personal knowledge. FED. R. EVID. 602.
35. This personal knowledge may be apparent "from [the] statement or be inferable from circumstances." FED. R. EVID. 803 advisory committee's note. It may be difficult in some cases to establish these prerequisites without evidence that corroborates the statement.
36. See Booth v. State, 508 A.2d 976, 984 (Md. 1986) ("[E]xtrinsic evidence may sometimes be required to demonstrate the contemporaneity of the statement, or to show that it is the product of personal perception by the declarant."). Nevertheless, the rule does not require any form of corroboration, and courts have allowed the content of the statement itself to establish the prerequisites.
37. See Miller v. Crown Amusements, Inc., 821 F. Supp. 703, 705-07 (S.D. Ga. 1993) (ruling that an anonymous 911 call was admissible as a present sense impression);
38. Talley v. Commonwealth, No. 2003-SC-0869-MR, 2005 WL 387443, at*1-2 (Ky. Feb. 17, 2005) (relying on the statement itself to reject the defendant's challenge to the district court's admission of an anonymous 911 call);
39. State v. Jones, 532 A.2d 169, 172-73 (Md. 1987) (concluding that "in some instances the content of the statement may itself be sufficient to demonstrate that it is more likely than not the product of personal perception" and upholding the admission of anonymous statements by CB-radio operators)
40. See People v. Vasquez, 670 N.E.2d 1328, 1334 (N.Y. 1996) ("Although we stated [previously] that 'there must be some evidence . . . that the statements sought to be admitted were made spontaneously and contemporaneously with the events described,' we did not mean by that language that such proof would suffice to satisfy the entirely separate requirement that the content of the communication be corroborated by independent proof." (emphasis added) (citation omitted)).
41. See FED. R. EVID. 803 (explaining that the declarant's availability is immaterial to the applicability of the exceptions listed in Rule 803).
42. See United States v. Blakey, 607 F.2d 779, 785 (7th Cir. 1979) ("The underlying rationale of the present sense impression exception is that substantial contemporaneity of event and statement minimizes unreliability due to defective recollection or conscious fabrication.")
43. overruled on other grounds by United States v. Harty, 930 F.2d 1257, 1263 (7th Cir. 1991)
44. cf. Edward J. Imwinkelried, The Importance of the Memory Factor in Analyzing the Reliability of Hearsay Testimony: A Lesson Slowly Learnt-and Quickly Forgotten, 41 FLA. L. REV. 215, 229-30 (1989) (emphasizing the importance of a declarant's potential failure of accurate recall as a key to explaining modern hearsay exceptions).
45. FED. R. EVID. 803(1) advisory committee's note
46. The common law rules prohibiting hearsay contained a catch-all exception for "res gestae." The term's meaning obscured in "a dead and foreign tongue," the res gestae exception provided attorneys and judges with "relief at a pinch" from the frustrating limits of hearsay doctrine. Edmund M. Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 YALE L.J. 229, 229 n.1, 230 (1922)
47. (quoting James B. Thayer, Bedingfield's Case.-Declarations as a Part of the Res Gesta (pt. 2), 15 AM. L. REV. 1, 10 (1881)).
48. See Peter Nicolas, 'I'm Dying to Tell You What Happened': The Admissibility of Testimonial Dying Declarations Post-Crawford, 37 HASTINGS CONST. L.Q. 487, 522 n.184 (2010) (explaining that "[a]t common law, the phrase 'res gestae' encompassed what today is encompassed by multiple different hearsay exceptions," including the present sense impression exception);
49. Aviva Orenstein, Sex, Threats, and Absent Victims: The Lessons of Regina v. Bedingfield for Modern Confrontation and Domestic Violence Cases, 79 FORDHAM L. REV. 115, 133 (2010) ("Modern courts rarely employ the term res gestae; it is a relic that served as a transitional device in the evolution of various hearsay exceptions and in honing the definition of hearsay." (footnote omitted)).
50. see also Charles W. Quick, Hearsay, Excitement, Necessity and the Uniform Rules: A Reappraisal of Rule 63(4), 6 WAYNE L. REV. 204, 204-05 (1960) (emphasizing, in an article written before the Federal Rules' adoption, the dim prospects for judicial adoption of the present sense impression exception). Both the Association of Trial Lawyers of America and the American Bar Association opposed the Advisory Committee's proposed exception for present sense impressions.
51. See James B. Thayer, Bedingfield's Case.-Declarations as a Part of the Res Gesta (pt. 3), 15 AM. L. REV. 71, 107 (1881) (advocating an expansion of what is permitted under the hearsay rules, including "declarations of fact which were very near in time to that which they tended to prove").
52. Eleanor Swift, One Hundred Years of Evidence Law Reform: Thayer's Triumph, 88 CALIF. L. REV. 2437, 2439 (2000).
53. Robert M. Hutchins & Donald Slesinger, Some Observations on the Law of Evidence, 28 COLUM. L. REV. 432, 439 (1928);
54. see also M.C. Slough, Spontaneous Statements and State of Mind, 46 IOWA L. REV. 224, 252 (1961) (emphasizing that "[i]n a great majority of the cases in which [present sense impressions] are admitted, . . . the witness hearing the declaration has had substantial opportunity to observe the event or condition to which the declaration relates").
55. See FED. R. EVID. 803(1) advisory committee's note (citing MORGAN, supra note 21) (identifying the theories developed in common law as the basis for the present rule).
56. Rule 803(1) can be traced to Rule 512 of the American Law Institute Model Code, advocated by Morgan as an expression of Thayer's views. MORGAN, supra note 21, at 340-42;
57. ALI, MODEL CODE OF EVIDENCE R. 512 (1942).
58. See FED. R. EVID. 803(1);
59. see also Kathryn E. Wohlsen, Comment, The Present Sense Impression Exception to the Hearsay Rule: Federal Rule of Evidence 803(1), 81 DICK. L. REV. 347, 355 (1977) (explaining, shortly after the rule was enacted, that "the requirement of contemporaneity" ensures "the opportunity to cross-examine the reporting witness concerning the fact and content of the statement").
60. FED. R. EVID. 803(1); see also Imwinkelried, supra note 21, at 329 ("Thirtyfour . . . states have adopted Rule 803(1) more or less verbatim.").
61. FED. R. EVID. 803(1) advisory committee's note
62. see also Edmund M. Morgan, Res Gestae, 12 WASH. L. REV. 91, 95-97 (1937) (reiterating the importance of the guarantee of reliability provided by a percipient witness); Waltz, supra note 20, at 894 (noting that Morgan interpreted Thayer's commentary to "plac[e] corroboration first as a condition justifying reception of present sense impressions").
63. See also In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 303 (3d Cir. 1983) (noting that "the rule is generally understood to require that, in addition to contemporaneity, there be some corroborating testimony" and upholding the trial court's exclusion of present sense impressions on the grounds that "there is reason to be skeptical" of the out-of-court statements at issue);
64. United States v. Blakey, 607 F.2d 779, 785 (7th Cir. 1979) (responding to a party's claim that the availability of a percipient witness is "implicit in the present sense impression exception" by noting that "it is only necessary that the witnesses be able to corroborate the declarant's statement")
65. overruled on other grounds by United States v. Harty, 930 F.2d 1259 (7th Cir. 1991);
66. cf. Glen Weissenberger, Evidence Myopia: The Failure to See the Federal Rules of Evidence as a Codification of the Common Law, 40 WM. & MARY L. REV. 1539, 1579-80 (1999) (arguing that courts should not attempt to discern the legislative intent behind the Federal Rules of Evidence, but instead must interpret them "in the context of the fluid common-law doctrines that the Rules represent").
67. Cf. FED. R. EVID. 901(b)(6) (providing an illustration of means of authenticating "telephone conversations")
68. Commonwealth v. Coleman, 326 A.2d 387, 390 (Pa. 1974) (affirming the admission of a statement over a home telephone as a present sense impression).
69. See, e.g., Ernst v. Commonwealth, 160 S.W.3d 744, 756 (Ky. 2005) (explaining that "corroboration is not an absolute prerequisite to admissibility" of a present sense impression and that "its absence affects only the weight of the evidence").
70. See FED. R. EVID. art. VII advisory committee's introductory note (stating that "under the recent cases the impact of the [Confrontation C]lause clearly extends beyond the confines of the hearsay rule" and that consequently the exceptions in Rules 803 and 804 do not guarantee admissibility in criminal trials);
71. See United States v. Ruiz, 249 F.3d 643, 647 (7th Cir. 2001) ("[C]ourts sometimes focus on the corroboration or the lack thereof in admitting or excluding present sense impressions, but the truth is that the rule does not condition admissibility on the availability of corroboration." (citation omitted));
72. Ramrattan v. Burger King Corp., 656 F. Supp. 522, 528 (D. Md. 1987) ("[C]orroboration is not required under Rule 803(1) . . . .");
73. United States v. Obayagbona, 627 F. Supp. 329, 339 (E.D.N.Y. 1985) ("Under the Federal Rules a present sense impression need not be corroborated, but where corroborating circumstances or witnesses are available, the hearsay gains in trustworthiness and probative force.");
74. Hallums v. United States, 841 A.2d 1270, 1278 (D.C. 2004) (surveying case law and concluding that "[m]any jurisdictions admit present sense impressions without requiring additional safeguards to ensure reliability," while "[i]n contrast, a shrinking minority of jurisdictions requires corroboration before a hearsay statement will be admitted as a present sense impression");
75. State v. Flesher, 286 N.W.2d 215, 218 (Iowa 1979) ("We find nothing, however, in either the wording of the exception nor in its underlying rationale which requires corroboration as a condition of its admissibility.");
76. Booth v. State, 508 A.2d 976, 983-84 (Md. 1986) (discussing the split of authority with regards to the corroboration requirement and concluding by "reject[ing] the contention that corroboration by an equally percipient witness is required as a condition to the admissibility of a statement of present sense impression");
77. People v. Luke, 519 N.Y.S.2d 316, 319 (Sup. Ct. 1987) ("Th[e] reference [to corroboration] by the Advisory Committee has generally not been interpreted by the Federal courts as an absolute requirement of corroboration." (citation omitted));
78. see also 30B MICHAEL GRAHAM, FEDERAL PRACTICE & PROCEDURE: EVIDENCE § 7042, at 405-06 (2006) ("[N]othing in Rule 803(1) actually requires that the in court witness, in addition to the out of court declarant, have personal knowledge of the underlying event.");
79. CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 8:67, at 560 (3d ed. 2007) ("Rule 803(1) does not require independent corroboration, as its silence on this point confirms.");
80. SALTZBURG ET AL., FEDERAL RULES OF EVIDENCE MANUAL (9th ed. 2006) § 803.02[2][b], at 803-15. The treatise continues, "To satisfy the timing, relationship, and event requirements, the witness in Court is probably going to have to be able to corroborate to some extent that the event actually occurred, unless the declarant is present to so testify or there is some other source of corroboration
81. See FED. R. EVID. 803(1).
82. See FED. R. EVID. 803(1) advisory committee's note (recognizing that because "unexciting events are less likely to evoke comment, decisions involving [present sense impressions] are far less numerous" than those involving excited utterances);
83. Commonwealth v. Blackwell, 494 A.2d 426, 431 (Pa. Super. Ct. 1985) ("Cases involving the present sense impression exception to the hearsay rule are infrequent.");
84. Ronald N. Boyce & Edward L. Kimball, Utah Rules of Evidence 1983 (pt. 3), 1995 UTAH L. REV. 717, 764 (describing the present sense impression exception as "sometimes overlooked");
85. Judith Lynn Schlossberg, State v. Jones: Maryland's Flexible Present Sense Impression Exception, 48 MD. L. REV. 537, 542 (1989) ("Although the exception is recognized today in most jurisdictions, cases dealing with present sense impression are relatively sparse.");
86. FED. R. EVID. 803(2). The "excited utterance" exception similarly arose out of the common law res gestae exception.
87. See FED. R. EVID. 803(2) advisory committee's note (explaining that "in most cases there is present at least circumstantial evidence" in addition to the statement itself "that something of a startling nature must have occurred"). As the analysis, historical and otherwise, of the excited utterance exception is distinct from that of the present sense impression exception, discussion of potential limits on the excited utterance exception in response to technological change requires separate treatment.
88. FED. R. EVID. 803(2).
89. See Adam J. Kolber, Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening, 59 VAND. L. REV. 1561, 1571-74 & nn.59-61 (2006) (summarizing scientific research on the effects of stimulation on memory and explaining that "[w]hen encountering a vicious creature in the forest . . . the same adrenaline that helps you run away from it also helps you remember to avoid that path the next time");
90. see also Judith L. Alpert et al., Comment on Ornstein, Ceci, and Loftus (1998): Adult Recollections of Childhood Abuse, 4 PSYCHOL. PUB. POL'Y & L. 1052, 1054-55 (1998) ("[A] large body of evidence exists to suggest that, in contrast to normal memories, emotional (and, hence, traumatic) memories are encoded differently. Emotional memories have been described as detailed and accurate and not prone to error . . . . [A] review of research on traumatic memories indicates the relative accuracy and persistence of traumatic memories as compared to more ordinary ones." (citations omitted)). As research into flawed eyewitness identifications reveals, the question of how stress influences memory is a complex one. Some research suggests that moderate levels of stress may enhance memory while higher levels will disrupt it.
91. See Charles A. Morgan III et al., Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27 INT'L J.L. & PSYCHIATRY 265, 274 (2004) (noting the existence of "robust evidence that eyewitness memory for persons encountered during events that are personally relevant, highly stressful, and realistic in nature may be subject to substantial error").
92. See Blackwell, 494 A.2d at 431 ("Commentators have generally characterized the occurrence giving rise to the declaration as an unexciting event.");
93. See, e.g., People v. Luke, 519 N.Y.S.2d 316, 317, 320 (Sup. Ct. 1987) (rejecting the argument that a bystander's call to 911 to describe a robbery in progress was an excited utterance in light of "the declarant's verbal demeanor [which] indicated a dispassionate and deliberate narration of the events as they were unfolding," but concluding that the call was admissible as a present sense impression). The Advisory Committee's Note to the exception also suggests that the rule operates to avoid disputes ("needless niggling") about whether a person made a statement while under the stress of excitement.
94. FED. R. EVID. 803(2) advisory committee's note. As the note explains, the two exceptions "overlap
95. See, e.g., United States v. Price, 58 F. App'x 105, 106-07 (6th Cir. 2003) (affirming the admission of a child's statements during a 911 call as both excited utterances and present sense impressions).
96. Cf. FED. R. EVID. 803(1) advisory committee's note (noting that "unexciting events are less likely to evoke comment").
97. An e-PSI along these lines would likely use "D.W.T."-Internet- speak for "driving while texting." Mark Leibovich, Choice Syllables for 2008, You Betcha, N.Y. TIMES, Dec. 21, 2008, at WK3.
98. See Joshua Foer, Secrets of a Mind-Gamer, N.Y. TIMES, Feb. 20, 2011, § 6 (Magazine), at 28 (reporting on a memory study and noting that "[w]hen we see in everyday life things that are petty, ordinary and banal, we generally fail to remember them"
99. (quoting RHETORICA AD HERENNIUM 219 (G.P. Gould ed., Harry Caplan trans., Harvard Univ. Press 1999))).
100. Cf. People v. Brown, 610 N.E.2d 369, 373 (N.Y. 1993) (noting that a requirement that "the declarant's descriptions of the events must be corroborated in court by a witness who was present with the declarant and who observed the very same events would deprive the exception of most, if not all, of its usefulness" because "[i]f such an eyewitness is available to testify to the events, there is certainly no pressing need for the hearsay testimony").
101. Examples of the phenomenon-particularly involving texting-are beginning to percolate in case reports. For example, in State v. Damper, the victim used her cell phone to text her friend just prior to her murder: "Can you come over? Me and Marcus are fighting and I have no gas." 225 P.3d 1148, 1150 (Ariz. Ct. App. 2010). An Arizona appellate court upheld the admission of the text, which provided evidence of a motive for the killing, as a present sense impression.
102. see also State v. Ford, 778 N.W.2d 473, 482 (Neb. 2010) (rejecting, on procedural grounds, a challenge to the trial court's ruling that a text message from the alleged rape victim-"I just got raped . . By jake . . I dont know what to do . ."-was "both an excited utterance and 'part of the res gestae of this crime'");
103. State v. Greer, No. 91983, 2009 WL 2574160, at*1, *7 (Ohio Ct. App. Aug. 20, 2009) (agreeing that a text sent from the victim to his friend two days before his death that stated, in reference to the defendant, "Girl, he trip'n," should not have been admitted as a present sense impression because the text did not reference a specific event and might have been "a general reflection or conclusion regarding the defendant's persona");
104. State v. Justice, No. W2008-01009-CCA-R3-CD, 2009 WL 1741398, at *12 (Tenn. Crim. App. June 15, 2009) (stating that text messages admitted against the defendant in a murder trial "arguably fall under the state of mind exception to the rule against hearsay");
105. State v. Maxwell, No. 2 CA-CR 2010-0089, 2011 WL 3075720, at *6-7 (Ariz. Ct. App. July 22, 2011) (implicitly agreeing that text messages revealing the victim's "relationship issues" fell under the state of mind exception to the hearsay rule, but upholding their exclusion on the ground that the text messages were needlessly cumulative);
106. State v. Robinson, 19 A.3d 259, 263-64 (Conn. App. Ct. 2011) (upholding the trial court's exclusion of a MySpace posting as hearsay because the trial record was inadequate for appellate review).
107. See generally Monique C.M. Leahy, Pretrial Involving Facebook, MySpace, LinkedIn, Twitter, and Other Social Networking Tools ("There is an ever increasing number of cases involving social networking communications, and these cases cover a broad range of areas of law. Often the communications in issue are postings on Facebook and MySpace."), in 121 AM. JUR. PROOF OF FACTS 3d § 8 (2010).
108. See Steve Lohr, Microsoft to Allow Partners to Alter Some Source Code, N.Y. TIMES, Apr. 10, 2003, at C7 ("Steady advances in chip speeds and miniaturization have enabled manufacturers to begin putting more computing power in smaller devices.").
109. See Jacob Livingston, Mixed Messages: Educators Blame Students' Errors on Texting Lingo, SPOKESMAN-REVIEW (Spokane, Wash.), Nov. 15, 2009, at I1, available at 2009 WLNR 23513445 (noting that "the percentage of the U.S. population who are always connected has skyrocketed" and reporting on a Nielsen Company survey that found "77 percent of [American] teenagers have their own mobile phones and more than 80 percent of those teens use text messaging," and that "[d]uring the first quarter of 2009, American teens sent or received an average of 2,899 text messages per month-an increase of 566 percent in just over two years");
110. John Timpane, Years of Change for Web, World, PHILA. INQUIRER, Dec. 28, 2010, at A1 (citing Lee Rainie, director of the Pew Research Center's Internet and American Life Project, in reporting that "today about 57 percent of adults are mobilely connected with smart phones and other devices to the Internet" and "[i]ncreasingly, social media such as Facebook and Twitter are mobile, not deskbound" such that "[m]obile phoners do almost anything you can do on a desktop: e-mail, Web surf, upload content, download podcasts").
111. See Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. REV. 27, 29, 41 (2008) (discussing the popularity of the iPhone and the amazing storage capacity of the device);
112. (citing AMANDA LENHART, PEW INTERNET & AM. LIFE PROJECT, TEENS AND MOBILE PHONES OVER THE PAST FIVE YEARS 12 (2009), available at http://www.pewinternet.org/~/media//Files/Reports/2009/ PIP%20Teens%20and%20Mobile%20Phones%20Data%20Memo.pdf));
113. Andrew M. Grossman, Comment, No, Don't IM Me-Instant Messaging, Authentication, and the Best Evidence Rule, 13 GEO. MASON L. REV. 1309, 1311-12 (2006) (same);
114. Android Surges Among Handset Purchasers, EMARKETER ( Jan. 13, 2010), http://www.emarketer.com/Article.aspx?R=1007462 (reporting survey results showing that forty-two percent of American consumers owned a smartphone in December 2009);
115. (citing Amanda Lenhart, The Democratization of Online Social Networks, PEW INTERNET & AM. LIFE PROJECT (Oct. 8, 2009), http://www.pewinternet.org/ Presentations/2009/41-The-Democratization-of-Online-Social-Networks.aspx)).
116. Statistics, FACEBOOK, http://www.facebook.com/press/info.php?statistics (last visited Nov. 15, 2011).
117. See Dhiraj Murthy, Twitter: Microphone for the Masses?, 33 MEDIA, CULTURE & SOC'Y 779, 780 (2011) (describing Facebook "status updates" as "short one- or two-line messages" that are often "trivially banal" but are "circulated as 'news'" to "your group of 'friends' on the site");
118. Devika Kewalramani, You Can Tweet but You Can't Hide: Social Networking for Lawyers, N.Y. L.J., June 30, 2010, at 4 (providing a primer for lawyers on social networking sites).
119. See Virginia Heffernan, The Medium: Being There, N.Y. TIMES, § 6 (Magazine), Feb. 15, 2009, at 15 (reporting that the capability of mobile devices to access social networking sites "has made it more likely that when a pal-the Jägermeister-besotted Sean, say-writes that he's stumbling home, he is stumbling home, right then, and simultaneously apprising his friends via his mobile");
120. Facebook for iPhone, FACEBOOK, http://www.facebook.com/iphone (last visited Nov. 15, 2011) (offering a free download of the Facebook application for the iPhone);
121. Take Twitter with You. Get the App., TWITTER, http://twitter.com/download (last visited Nov. 15, 2011) (showcasing the Twitter application available for download for several mobile devices).
122. See Your World, More Connected, TWITTER BLOG (Aug. 1, 2011, 9:25 AM), http://blog.twitter.com/2011/08/your-world-more-connected.html (reporting that Twitter generates over 200 million tweets per day, up from 65 million tweets per day in 2010).Anyone with an email account or text-messaging service can duplicate the effect of these services by texting or emailing status updates to friends and associates. Twitter and Facebook simply make this process easier and more efficient and exponentially magnify its effect.
123. See Nicolas P. Terry, Physicians and Patients Who "Friend" or "Tweet": Constructing a Legal Framework for Social Networking in a Highly Regulated Domain, 43 IND. L. REV. 285, 290 (2010) (commenting that social networking sites, including MySpace and Facebook, allow users to communicate with friends and acquaintances who are also part of "predominantly offline networks");
124. KNOWLEDGE NETWORKS, ASSOCIATED PRESS-MTV, DIGITAL ABUSE SURVEY AUGUST 2011, at 2 (2011), available at http://surveys.ap.org (follow "September 27: AP-MTV - digital abuse" hyperlink) (reportingthat 82% of poll respondents sent or received a text from a friend within the previous seven days (up from 77% two years earlier), 73% sent or received messages through a social networking site within the previous seven days (up from 66%); and 15% sent or received tweets on Twitter within the previous seven days). Google recently launched a social networking site to compete with Facebook called Google+.
125. See GOOGLE+, https://plus.google.com (last visited Nov. 15, 2011).
126. The default setting on Twitter renders tweets "public," meaning that they can be viewed by anyone (even nonusers) who accesses the site. Users can alter the default setting to make their tweets available only to preapproved followers. See Twitter Privacy Policy, TWITTER, http://twitter.com/privacy (last updated June 23, 2011) ("Most of the information you provide to us is information you are asking us to make public. . . . Our default is almost always to make the information you provide public but we generally give you settings . . . to make the information more private if you want.").
127. See Tweet Preservation, TWITTER BLOG (Apr. 14, 2010, 11:56 AM), http://blog.twitter.com/2010/04/tweet-preservation.html (announcing Twitter's agreement to "donate access to the entire archive of public Tweets to the Library of Congress for preservation and research").
128. See Search, TWITTER, http://search.twitter.com (last visited Nov. 15, 2011).
129. See, e.g., TOPSY, http://topsy.com/tweets (last visited Nov. 15, 2011) (presenting a publicly accessible search engine that provides "[r]eal-time search for the social web").
130. Jennie Yabroff, Here's Looking at You, Kids, NEWSWEEK, Mar. 24, 2008, at 66, 67;
131. see also Eric Adler, Thanks to Digital Cameras and Facebook, a Generation Documents Itself Like Never Before, KAN. CITY STAR, Sept. 6, 2008, at F1, available at 2008 WLNR 16878241 ("Over the last five years, scholars say, the meteoric rise of social media sites, including MySpace, Facebook, YouTube and Twitter, has sparked a public explosion in selfdocumentation, making the 'me' in multimedia more prominent than ever.");
132. Steven Johnson, In Praise of Oversharing, TIME, May 31, 2010, at 39 (discussing the newly evolving social norm of sharing private, personal information, including life-changing events, via Twitter and Facebook);
133. Mary Elizabeth Williams, Are Facebook Users Really More Narcissistic?, SALON.COM (Sept. 9, 2010, 11:01 AM), http://life.salon.com /2010/09/09/facebook- narcissists (discussing the merits of the self-promotion that occurs on Facebook). The online, user-generated Urban Dictionary describes the "Look at Me Generation" as "anyone born between 1990 and 2000" who "favors youtube, reality tv, constant status updates, twitter posts, bright clothing, and anything else that may attract attention to oneself
134. Candy Kid, Look at Me Generation, URBAN DICTIONARY (Oct. 28, 2009), http://www.urbandictionary.com/define.php?term=look+at+me+generation.
135. Seth P. Berman et al., Web 2.0: What's Evidence Between "Friends"?, BOS. B.J., Jan-Feb. 2009, at 5, 5 (describing the modern practice of "posting mundane aspects of your life in short and incessant online posts");
136. Elizabeth Bernstein, How Facebook Ruins Friendships, WALL ST. J., Aug. 25, 2009, at D1 (complaining to Facebook friends that "I don't give a hoot that you are 'having a busy Monday,' your child 'took 30 minutes to brush his teeth,' your dog 'just ate an ant trap' or you want to 'save the piglets.'");
137. Joe Posnanski, Tweet Nothings, SPORTS ILLUSTRATED, Feb. 7, 2011, at 74, 74 (recounting hilariously mundane and often incoherent tweets posted by famous athletes);
138. Consuelo Reinberg, Are Tweets Copyright-Protected?, BPCOUNCIL NOTES (BP Council, Geneva, Switz.)
139. reprinted in WIPO MAG., Aug. 2009, at 11, 11 (describing the content of Twitter posts as mostly concerning "facts," ranging from "talking about the weather, to communicating what one had for dinner the night before, to complaining about the morning traffic");
140. Times Topics: Twitter, N.Y. TIMES, http://topics.nytimes.com/top/news/ business/companies/twitter/index.html (last visited Nov. 15, 2011) ("While some of these tweets have the profundity of haiku, most are mundane, like 'Sure is pretty out tonight' or 'My eyes itch. I am very aggravated.'").
141. If a tree falls in the forest with no one around, its voice can now be heard so long as it possesses an iPhone: Cedar29 2 minutes ago Just fell in the forest. Any1 around? CLAB. "CLAB" is Internet slang for "[c]rying like a baby." Randi Bjornstad, Ruth Retiring? OMG!, REGISTER-GUARD (Eugene, Or.), Sept. 12, 2010, at E35, available at 2010 WLNR 20502905. The example is slightly unrealistic, of course, because statements by trees do not constitute hearsay.
142. See FED. R. EVID. 801(a) (defining hearsay as an assertion "of a person").
143. Statements such as these that discuss the speaker's own activities fall within the present sense impression exception. See United States v. Murillo, 288 F.3d 1126, 1137 (9th Cir. 2002) (noting the defendant's concession that the statement "I'm with Diana . . . and Rico" was a present sense impression);
144. Booth v. State, 508 A.2d 976, 977, 985 (Md. 1986) (holding that statements made over the phone describing the caller's activities were admissible as present sense impressions);
145. State v. Sziva, No. 23384, 2007 WL 2809924, at *6 (Ohio Ct. App. Sept. 28, 2007) (concluding that the declarant's statements during a phone call that "described where he was and what he was doing . . . were present sense impressions"). Statements like "I am in my living room" are substantively identical to statements like "I perceive myself to be in my living room" or "I perceive around me the things I normally associate with my living room
146. Cf. Lynn McLain, "I'm Going To Dinner With Frank": Admissibility of Nontestimonial Statements of Intent to Prove the Actions of Someone Other than the Speaker-And the Role of the Due Process Clause, 32 CARDOZO L. REV. 373, 398 n.144 (2010) (suggesting that a statement that someone else is present "would qualify as a present sense impression under Rule 803(1)");
147. (citing State v. Flesher, 286 N.W.2d 215, 216, 218 (Iowa 1979))). Statements regarding the declarant's feelings, such as "I like my living room," fall within a separate hearsay exception.
148. See Cardenas v. State, 115 S.W.3d 54, 62-63 (Tex. App. 2003) (holding that the statement that another person "is in my apartment" was admissible as a present sense impression while the statement that the person "is making me uncomfortable" was admissible as an expression of a state of emotion). For further discussion of the state of mind exception
149. Some Twitter users have hundreds of thousands or even millions of followers. For example, Ashton Kutcher (an actor and early adopter of Twitter) had over eight million followers at the time of writing. See Ashton Kutcher, TWITTER, http://twitter.com/#!/aplusk (last visited Nov. 15, 2011);
150. See Paul Ohm, Probably Probable Cause: The Diminishing Importance of Justification Standards, 94 MINN. L. REV. 1514, 1556 (2010) (explaining that a key distinction between a "Facebook status update" and the casual utterances these status updates replace is that, unlike the stray "utterances that once floated through the air and then disappeared without a trace," status updates are "not only . . . stored, but also they are accessible by a company that is not a party to the conversations");
151. Daniel de Vise, Schoolyard Face-Offs Blamed on Facebook Taunts, WASH. POST, Apr. 27, 2008, at C1 (noting that Facebook comments are "now immortalized on semipublic Web pages, where they can be viewed by thousands");
152. Jacob Leibenluft, Do Text Messages Live Forever?, SLATE.COM (May 1, 2008, 6:51 PM), http://www.slate.com/id/2190382 (discussing the possibility that, depending on one's cell phone service provider, even deleted text messages can be recovered from one's phone, but noting that some providers delete text messages fairly rapidly).
153. Steven C. Bennett, Look Who's Talking: Legal Implications of Twitter Social Networking Technology N.Y. ST. B. ASS'N J., May 2009, at 10, 13 (suggesting that Twitter "messages may become potent evidence in the event of litigation, just as e-mail has become");
154. Susan W. Brenner, Internet Law in the Courts, J. INTERNET L., Dec. 2009, at 16, 16-18 (noting the potential application of Rule 803(1)-(3) to Twitter);
155. see also Josephine Ross, After Crawford Double-Speak: "Testimony" Does Not Mean Testimony and "Witness" Does Not Mean Witness, 97 J. CRIM. L. & CRIMINOLOGY 147, 161 (2006) (noting that the Crawford ruling represents a "paradigm shift").
156. U.S. CONST. amend. VI.
157. See Crawford, 541 U.S. at 51 (explaining that some, but "not all[,] hearsay implicates the Sixth Amendment's core concerns");
158. Ohio v. Roberts, 448 U.S. 56, 65 (1980) ("The Confrontation Clause operates . . . to restrict the range of admissible hearsay.").
159. see also Edward J. Imwinkelried, The Constitutionalization of Hearsay: The Extent to Which the Fifth and Sixth Amendments Permit or Require the Liberalization of the Hearsay Rules, 76 MINN. L. REV. 521, 525-28 (1992) (discussing the pre-Crawford test for the constitutionality of the admission of hearsay).
160. See, e.g., Gutierrez v. McGinnis, 389 F.3d 300, 302 n.1 (2d Cir. 2004) (recognizing that "the question of whether the present sense impression is a 'firmly rooted' hearsay exception remains open");
161. United States v. Murillo, 288 F.3d 1126, 1137 (9th Cir. 2002) (explaining that "[t]he government admits that there is no case law holding that the present sense impression exception to the rule against hearsay is 'firmly rooted'" and "[t]herefore, the focus of the inquiry is whether there is a particularized guarantee of trustworthiness with respect to this statement");
162. Guam v. Ignacio, 10 F.3d 608, 614 (9th Cir. 1993) ("Neither the Supreme Court nor this court has ruled as to whether or not the present sense impression exception is a 'firmly rooted' exception to the rule against hearsay.")
163. Samuel C. Kaplan, "Grab Bag of Principles" or Principled Grab Bag?: The Constitutionalization of Common Law, 49 S.C. L. REV. 463, 486-87 (1998) (explaining that "[a]t least two federal courts and one state court have declared [the present sense impression] exception to be firmly rooted for purposes of the Confrontation Clause" but suggesting flaws in this analysis);
164. Rose Margaret Casey, Developments in the Law, 68 ST. JOHN'S L. REV. 285, 291 n.33, 293 n.41 (1994) (noting the unsettled nature of the question but concluding that "the present sense impression exception does not share the history of reliability of the firmly rooted exceptions").
165. But see United States v. Peacock, 654 F.2d 339, 350 (5th Cir. Aug. 1981) (implying that the present sense impression exception is firmly rooted), vacated in part on other grounds, 686 F.2d 356 (5th Cir. Unit B 1982).
166. But cf. Glen Weissenberger, Hearsay Puzzles: An Essay on Federal Evidence Rule 803(3), 64 TEMP. L. REV. 145, 167, 172 (1991) (arguing that Confrontation Clause analysis of out-of-court statements admitted under the state of mind exception "must proceed on a case-by-case basis to determine whether particularized guarantees of trustworthiness are present," while conceding that the Supreme Court, in a footnote evaluating the modern coconspirator hearsay exception, "held that even when certain aspects of an exception are liberalized, the exception does not lose its status as 'firmly rooted'"
167. (citing Bourjaily v. United States, 483 U.S. 171, 184 n.4 (1987))).
168. See Crawford, 541 U.S. at 68-69 ("Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demand is the one the Constitution actually prescribes: confrontation.").
169. Whorton v. Bockting, 549 U.S. 406, 420 (2007)
170. Crawford, 541 U.S. at 51
171. (citing 2 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (New York, S. Converse 1828));
172. see also Michigan v. Bryant,131 S. Ct. 1143, 1155 (2011) ("[T]he most important instances in which the Clause restricts the introduction of out-of-court statements are those in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial.").
173. Crawford, 541 U.S. at 51.
174. (quoting Davis v. Washington, 547 U.S. 813, 827 (2006)));
175. See, e.g., United States v. Danford, 435 F.3d 682, 687 (7th Cir. 2006) (rejecting a Confrontation Clause challenge to the admission of a present sense impression that was "more akin to a casual remark than . . . to testimony in the Crawford-sense");
176. State v. Damper, 225 P.3d 1148, 1151 (Ariz. Ct. App. 2010) (rejecting a Confrontation Clause challenge to a text message admitted as a present sense impression because the message was nontestimonial);
177. Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009) (holding that the Confrontation Clause did not bar the introduction of a text message because it was not testimonial);
178. People v. Herrera, No. 05-208, 2006 WL 758544, at *17 (N.Y. Sup. Ct. Mar. 22, 2006) (concluding that a present sense impression did not implicate the Confrontation Clause because the statement was made without "government participation in the conversation," "was clearly not formal in nature," and "its subsequent use in a criminal prosecution could not be foreseen"). Arguing that casual statements may be just as accusatory as formal accusations, Josephine Ross proposes that the Court adopt a different approach to defining "testimonial" that focuses on the function of the out-of-court statement in the trial.
179. William Gorman Passannante, Note, Res Gestae, The Present Sense Impression Exception and Extrinsic Corroboration Under Federal Rule of Evidence 803(1) and its State Counterparts, 17 FORDHAM URB. L.J. 89, 106 (1989) ("To require an extra element of corroboration of the substance of the declarant's statement is imprudent, as it confuses the process of admission of evidence with the question of weight, which is properly for the jury.").
180. See FED. R. EVID. 901(a) (requiring the proponent of evidence to come forward with "evidence sufficient to support a finding that the matter in question is what its proponent claims"). Nevertheless, the authentication standard is a permissive one.
181. See, e.g., United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996) (explaining that under Rule 901 a party offering evidence "need only make
182. see Ira P. Robbins, Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence, 13 MINN. J.L. SCI. & TECH. 1 (2011).
183. Shanyang Zhao et al., Identity Construction on Facebook: Digital Empowerment in Anchored Relationships, 24 COMPUTERS HUM. BEHAV. 1816, 1830 (2008) (noting that people's "Facebook selves appeared to be [the] highly socially desirable identities individuals aspire to have offline but have not yet been able to embody for one reason or another," a result that "is consistent with the findings of Internet dating studies")
184. Tom Meltzer, Social Networking: Failure to Connect, GUARDIAN (London), Aug. 7, 2010, at 24, available at 2010 WLNR 15693961 ("In this status-update culture, we don't really live experiences, we live them to report them. We're editing ourselves rather than actually being ourselves." (internal quotation marks omitted));
185. Katie Roiphe, The Language of Fakebook, N.Y. TIMES, Aug. 15, 2010, at 2ST (describing how adolescents blur the lines between fact and fiction on Facebook and noting that "in general Facebook feeds on fiction; it consumes it, and spits it out in every direction").
186. See FED. R. EVID. 803(1) (requiring a statement to be made "while the declarant was perceiving the event or condition, or immediately thereafter").
187. see also State v. Damper, 225 P.3d 1148, 1150 (Ariz. Ct. App. 2010) (noting that the text message admitted against the defendant was "written part[ly] in . . . text lingo" (internal quotation marks omitted));
188. State v. Justice, No. W2008-1009-CCA-R3-CD, 2009 WL 1741398, at *5 n.4 (Tenn. Crim. App. June 15, 2009) (explaining that the text messages admitted against the defendant were actually "written in text message shorthand" and then interpreted at trial);
189. Streeter Seidell, Don't Go Blaming Me. I Voted on 'Hot or Not.,' N.Y. TIMES, Jan. 20, 2008, at 2 WK (musing that the so-called "look at me" generation has "invented a secret language that cannot be understood by anyone over thirty and l00k5 5om3th1n6 l1k3 th1s").
190. See Damn You Autocorrect: Frequently Asked Questions, DAMN YOU, AUTO CORRECT! ( July 27, 2011), http://damnyouautocorrect.com/10785/damn-you- autocorrect-frequently-asked-questions. Journalist David Pogue asked his Twitter followers to submit their "most memorable [autocorrect] glitches" and posted a list of his favorites on his blog.
191. David Pogue, Autocorrect Follies, POGUE'S POSTS (June 21, 2010, 2:45 PM), http://pogue.blogs.nytimes.com/2010/06/21/autocorrect-follies. In another particularly tragic example in England, a man was convicted of manslaughter after a misunderstanding over a text led to a violent fight.
192. See Victim Stabbed to Death over Text Message Mix-Up, BOLTON NEWS (Eng.), Feb. 2, 2011, available at http://www.theboltonnews.co.uk/news/8826815.Victim- stabbed-to-death-over-text-message-mix-up.
193. Amy Harmon, Internet Changes Language for :-) & :-(, N.Y. TIMES, Feb. 20, 1999, at B7 (explaining that in online chat rooms, "a correctly spelled word is a sign of the inarticulate and an innovative abbreviation is prized above all else").
194. See Damper, 225 P.3d at 1151 (allowing a text message written by the victim to be admitted as evidence in a murder trial); supra Section II.C.
195. People v. Vasquez, 670 N.E.2d 1328, 1334 (N.Y. 1996);
196. Vasquez, 670 N.E.2d at 1334. The court further elaborated that "[t]he corroboration element of the present sense impression exception is more complex and concomitantly more difficult to delineate" than the other elements but concluded that, "in all cases the critical inquiry should be whether the corroboration offered to support admission of the statement truly serves to support its substance and content
197. FLA. STAT. ANN. § 90.803(1) (West 2009);
198. see also OHIO R. EVID. 803(1);
199. Deparvine v. State, 995 So. 2d 351, 369-71 (Fla. 2008) (affirming the trial court ruling admitting as a present sense impression a statement made over a cell phone that the declarant was "following Rick and the guy that bought the truck");
200. State v. McNeal, No. 1-01-158 2002 WL 1376177, at *5 (Ohio Ct. App. June 18, 2002) (affirming the admission of a tape of an anonymous 911 call despite internal contradictions in the call because, when the court considered the "totality of the circumstances," the discrepancies did not "so undermine[] the trustworthiness . . . as to preclude admission of the tape as a present sense impression").
201. New Mexico appears to follow a similar approach. See State v. Case, 676 P.2d 241, 244-45 (N.M. 1984) (explaining that trial judges have "broad discretion" to determine whether present sense impressions are reliable and thus admissible in light of their "view of the type of case, the availability of other evidence, the verifying details of the statement and the setting in which the statement was made").
202. See FED. R. EVID. art. VIII advisory committee's introductory note (noting that the rules' approach to hearsay "is that of the common law, i.e., a general rule excluding hearsay, with exceptions" and rejects "[a]bandonment of the system of class exceptions in favor of individual treatment in the setting of the particular case" as "involving too great a measure of judicial discretion, minimizing the predictability of rulings, enhancing the difficulties of preparing for trial, adding a further element to the already over-complicated congeries of pretrial procedures, and requiring substantially different rules for civil and criminal cases");
203. Wilson Huhn, The Stages of Legal Reasoning: Formalism, Analogy, and Realism, 48 VILL. L. REV. 305, 373 (2003) (identifying the drafters' rejection of a statement-by-statement approach to hearsay in favor of "a lengthy list of specific exceptions to the rule against hearsay" as one of the "most significant choices between rules and standards in American law");
204. Glen Weissenberger, Reconstructing the Definition of Hearsay, 57 OHIO ST. L.J. 1525, 1535 (1996) (explaining that the drafters rejected proposals that would have relied on judicial discretion in favor of the common law system of "an exclusionary rule, a hearsay definition, and formal exceptions"). Admittedly, there are a few exceptions.
205. See FED. R. EVID. 803(6)-(8) (allowing judges to exclude business records and public records and reports where the "sources of information or other circumstances indicate lack of trustworthiness");
206. FED. R. EVID. 804(b)(3) (requiring the exclusion of a statement made against the declarant's penal interest in a criminal case unless "corroborating circumstances clearly indicate the trustworthiness of the statement");
207. see also United States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995) (explaining that while "the precise nature of the corroboration required by Rule 804(b)(3) cannot be fully described, the courts have identified several factors" to consider, including "the nature and strength of independent evidence relevant to the conduct in question");
208. See FED. R. EVID. art. VIII advisory committee's introductory note (describing an alternative approach where "[a]dmissibility [of hearsay] would be de termined by weighing the probative force of the evidence against the possibility of prejudice, waste of time, and the availability of more satisfactory evidence" but rejecting that approach "as involving too great a measure of judicial discretion, minimizing the predictability of rulings, enhancing the difficulties of preparing for trial, adding a further element to the already over-complicated congeries of pretrial procedures, and requiring substantially different rules for civil and criminal cases"). Stated another way, Rule 403 is not a sufficient check on unreliable e-PSIs for the same reason that Rule 403 is not a sufficient check on hearsay generally. Questions about the reliability of out-of-court statements are properly addressed by the hearsay rules, not by trial courts assessing the credibility of absent declarants under Rule 403.
209. See, e.g., People v. Vasquez, 670 N.E.2d 1328, 1334 (N.Y. 1996) (explaining that New York judges "added a requirement of corroboration to bolster these assurances of reliability" with respect to present sense impressions, but failing to provide any overall justification for the new hybrid exception).
210. Consistent with the consensus that existed prior to the promulgation of the Federal Rules of Evidence, California, Connecticut, Nebraska, Oregon, and Tennessee do without the exception altogether. See State v. Torelli, 931 A.2d 337, 347 n.12 (Conn. App. Ct. 2007) ("Neither our state case law, nor the Connecticut Code of Evidence includes a present sense impression exception to the hearsay rule.");
211. State v. Carpenter, 773 S.W.2d 1, 9 (Tenn. Crim. App. 1989) (finding that there is no precedent in Tennessee for a present sense impression but affirming the trial court's decision to admit the evidence on the alternative ground that it was an excited utterance);
212. See FED. R. EVID. 803(5) (excepting recorded statements of the testifying witness). California's evidence code includes an exceedingly narrow analogue to the exception.
213. See CAL. EVID. CODE § 1241 ("Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Is offered to explain, qualify, or make understandable conduct of the declarant; and (b) Was made while the declarant was engaged in such conduct.").
214. In 1985, a Pennsylvania appellate court implemented this form of the corroboration requirement. See Commonwealth v. Blackwell, 494 A.2d 426, 434-35 (Pa. Super. Ct. 1985) (ruling that a statement did not fall within the present sense impression exception because the declarant "did not make his descriptive statements in the presence of another person who also was at the scene" and that the "requirement that there be such a person is critical to providing the assurance of reliability needed to warrant admission of a statement as within the present sense impression"). Subsequent case law abandoned this requirement.
215. See Commonwealth v. Peterkin, 513 A.2d 373, 379 (Pa. 1986) (holding that the declarant's statements made over the telephone were admissible under the present sense impression exception even though they had not been made in the presence of another person also at the scene);
216. Commonwealth v. Harris, 658 A.2d 392, 395 (Pa. Super. Ct. 1995) ("The stated requirement that the recipient of the statement be also at the scene does not appear to represent the commonly accepted understanding of this important exception to the hearsay rule . . . ."). When Pennsylvania later codified its evidence rules, the pertinent rule omitted any corroboration requirement, relying solely on contemporaneity.
217. See PA. R. EVID. 803(1) & cmt. ("The trustworthiness of the statement arises from its timing. The requirement of contemporaneousness, or near contemporaneousness, reduces the chance of premeditated prevarication or loss of memory."). Minnesota employs an even stricter variant of this requirement, dictating that the declarant must testify for the present sense impression to be admissible.
218. See MINN. R. EVID. 801(d)(1)(D) committee cmt. ("The committee was concerned with the trustworthiness of such statements when the declarant was not available to testify at trial.").
219. cf. FED. R. EVID. 803(1) advisory committee's note (explaining that if "the witness is not the declarant, he may be examined as to the circumstances as an aid in evaluating the statement");
220. People v. Brown, 610 N.E.2d 369, 373 (N.Y. 1993) (rejecting the equally percipient witness requirement, in part, because "[i]nsisting that the declarant's descriptions of the events must be corroborated in court by a witness who was present with the declarant and who observed the very same events would deprive the exception of most, if not all, of its usefulness").
221. See, e.g., State v. Jones, 532 A.2d 169, 171-75 (Md. 1987) (upholding the admissibility of anonymous statements by CB-radio operators that were testified to by a state trooper who was not present at the scene and instead merely overheard the statements on his radio).
222. FED. R. EVID. 804(b)(2).
223. See, e.g., FED. R. EVID. 807 (delineating situations where a statement not covered by Rule 803 but having "equivalent circumstantial guarentees of trustworthiness" is not excluded by the hearsay rule).
224. See United States v. Peneaux, 432 F.3d 882, 893 (8th Cir. 2005) (recognizing that "Congress intended the residual hearsay exception to 'be used very rarely, and only in exceptional circumstances'"
225. (quoting S. REP. NO. 93-1277, at 20 (1974)));
226. State v. McClendon, 730 A.2d 1107, 1114 (Conn. 1999) ("'[T]he residual hearsay exceptions [should be] applied in the rarest of cases'. . .
227. (quoting United States v. DeVillo, 983 F.2d 1185, 1190 (2d Cir. 1993)))
228. State v. Anderson, 695 N.W.2d 731, 755 (Wis. 2005) (Bradley, J., concurring) ("The residual hearsay exception should be sparingly used.");
229. FED. R. EVID. 807.
230. Weinstein's treatise contains a table identifying the practice of each state that has adopted statutory hearsay rules. 6 JACK B. WEINSTEIN & MARGA RET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE, at T-214 to -19 ( Joseph M. McLaughlin ed., 2d ed. 2011). The table identifies twenty-six states, Puerto Rico, Guam, and the Military, which follow the federal model with respect to a residual exception and identifies fourteen states that do not have the exception.
231. Such a limitation would not be unfamiliar to the Federal Rules. See FED. R. EVID. 804(b)(2) (limiting use of hearsay exception for dying declarations to civil cases and prosecutions for homicide).
232. See FED. R. EVID. 804 (setting forth examples of circumstances where the declarant will be deemed "unavailable" and limiting use of subsequent hearsay exceptions to circumstances where "the declarant is unavailable as a witness," including a lack of memory);
233. see also FED. R. EVID. 803(5) (allowing for recorded recollections of a testifying witness). A related alternative would be to move the present sense impression exception to Rule 801(d) and treat it like other prior statements of a witness that are "not hearsay," provided that the declarant "testifies at the trial or hearing and is subject to cross-examination concerning the statement
234. FED. R. EVID. 801(d)(1). This is the approach adopted by Minnesota.
235. See FED. R. EVID. 803 advisory committee's note (explaining that the exceptions in Rule 803, including the present sense impression exception, concern statements that "possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available"). The fact that the opposing party can subpoena the declarant will mitigate this concern to a degree, but only if the opposing party is sufficiently diligent, sophisticated, and motivated to take this step, and the declarant is identified, locatable, and willing to cooperate.
236. As it becomes more difficult to admit uncorroborated statements as present sense impressions, litigants will try to fit such statements into related exceptions, such as the state of mind exception, FED. R. EVID. 803(3), the excited utterance exception
237. FED. R. EVID. 803(2)
238. or even the recorded recollection exception, FED. R. EVID. 803(5). The state of mind exception warrants additional comment. In the coming years, the hearsay exception for expressions of a "then existing state of mind" will similarly open the courthouse to countless electronic utterances.
239. See FED. R. EVID. 803(3) (allowing for a "statement of the declarant's then existing state of mind" without commenting on the type of medium in which this statement might be preserved, seemingly keeping the door open for all types of electronic communications). Yet due to their inherently subjective nature, expressions of a person's state of mind were never subject to corroboration and cannot now be so conditioned.
240. See, e.g., Mut. Life Ins. Co. v. Hillmon, 145 U.S. 285, 295-96 (1892) (determining that the declarant's written letter that he intended to go to Wichita was admissible as reflecting state of mind without requiring further corroboration). In fact, courts and scholars have long criticized the state of mind exception as occupying less stable footing than the present sense impression exception.
241. See Eleanor Swift, The Problem of "Trustworthiness" in the Admission of State of Mind Hearsay Under California and Federal Evidence Law, 36 SW. U. L. REV. 619, 639-45 (2008) (noting "conflicting federal authority" in discussing the courts' division between the adoption of either the "categorical" or "trustworthiness" approaches to Rule 803(3)). Nevertheless, Weinstein's sentiment correctly captures the fact that courts already screen out statements offered under the state of mind exception that they perceive to be unreliable, either through a finding of "lack of contemporaneousness" or by shifting the analysis to "principles of relevance, and Rule 403" and deeming the state of mind expressed to be distinct from the state of mind at issue.