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Home Archive Volume 61 Volume 61, Issue 6 Don't Just Do Something! E-Hearsay, the Present Sense Impression, and the Case for Caution in the Rulemaking Process
Don't Just Do Something! E-Hearsay, the Present Sense Impression, and the Case for Caution in the Rulemaking Process

By Liesa L. Richter | 61 Am. U. L. Rev. 1657 (2012)

This Article weighs in on the cutting-edge debate regarding the effects of electronic hearsay or “e-hearsay” on the truth-seeking function of the trial process. Professor Jeffrey Bellin recently raised an urgent call to revise the present sense impression exception to the hearsay rule as a result of the explosion of hearsay on-line, recommending a “percipient witness” amendment to the rule. This Article responds to Professor Bellin and argues that a “percipient witness” requirement is not only unnecessary, but potentially deleterious to the goal of a rational and fair trial system to achieve accurate fact-finding.

While e-hearsay may be dressed up in contemporary vernacular and preserved in a novel format, it remains human communication. This Article argues that, because existing hearsay doctrine was designed to deal with human communication with all of its frailties and idiosyncrasies in whatever form it may take, amendments to account for e-hearsay are unnecessary. Further, this Article highlights the overlooked benefits of electronic present sense impressions to the trial process, particularly in the domestic violence context, where critical victim hearsay within other exceptions is now excluded by the Supreme Court’s Confrontation Clause jurisprudence in Crawford v. Washington and its progeny. This Article urges confidence in the ability of trial judges to regulate the latest installment in ever-evolving platforms of communication and counsels restraint in the rulemaking process.

Finally, should trial courts demonstrably fail to regulate e-hearsay under existing rules when given the opportunity, this article outlines four potential alternatives to a “percipient witness” requirement that would preserve valuable evidence and be consistent with the goal of the Federal Rules of Evidence to ascertain “the truth and secur[e] a just determination.”

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