POSTED BY Veronica C. LaClair
It is a concept as foundational and intuitive as science itself: survival of the fittest. In order to survive one must learn to adapt and evolve within a changing world. Darwin’s principle does not just hold true for the evolution of species, but has a strong correlation to the evolution of society as well. Today’s society, more so than ever, is highly dependent on technology; specifically social media and social networking technologies. Therefore, those who cannot—or choose not to—keep up with the advances in technology and communications will surly go extinct. This principle expands across numerous parts of society including the legal profession. Within the legal profession the Federal Rules of Evidence are a species all their own, and if their writers do not adapt and evolve them in accordance with societal changes, such as the rapid dependence and use of social media and networking technology, they will never survive.
Almost as intricate and mystifying as Darwin’s theory of evolution is the doctrine of hearsay. As many students and legal professionals have come to know, and not always love, the doctrine of hearsay plays an important role in the context of the courtroom and comprises a lengthy article within the Federal Rules of Evidence. The basic principle of the hearsay doctrine holds: A statement made by a declarant, outside of the courtroom, intending to prove the truth of the matter asserted by the statement is hearsay and is not admissible evidence (Federal Rules of Evidence—Article VIII. Hearsay). Hearsay is not admissible unless allowed: by exception under the Federal Rules of Evidence, by ruling of the Supreme Court, or by federal statute.[1] Examples of statements that fall within the hearsay exceptions under the Federal Rules of Evidence are: present sense impressions, excited utterances, business records, statements in ancient documents, statements made for medical diagnosis or treatment, etc.[2]
A present sense impression is “a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it” (Federal Rules of Evidence—Rule 803). An excited utterance is “a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.”[3]. The Advisory Committee notes that these two exceptions overlap considerably, with their most significant difference being the time lapse each permits between event and statement.[4] When the present sense impression and the excited utterance exceptions to the hearsay doctrine were crafted it was under the basic principle that such statements would be asserted either verbally or through ones physical conduct. However, in today’s society with the advent and prevalence of social media and networking technologies and their readily accessible nature through smart phones and personal media devices individuals can produce statements that fit within these two exceptions through solely electronic means. A person can for example make a present sense impression by posting a status update to Facebook or tweeting to Twitter, such statuses and tweets can be made instantly, in real-time, and while a person is perceiving an event. Moreover, a person can make an excited utterance through similar means or by phone call while they are still impacted by the stress or excitement of the event. Therefore, the question becomes: Are courts going to adapt and evolve to include such social medial and networking technology statements to be incorporated within the doctrine of hearsay under the Federal Rules of Evidence?
The answer to this question is yes. The general trend of courts and commentaries has been towards adaptation and evolution. The legal profession has made a survival plan and it includes incorporating social media and networking technology statements into civil and criminal trials. Courts seem willing to allow statements made though social media and networking technologies to be admissible under the doctrine of hearsay, as long as such statements meet the qualifications of the specific hearsay exception in which they are applying. In fact present sense impression statements made through Facebook and Twitter have already had their day in court. Furthermore, in many cases statements made through social media and networking technologies means are treated no differently than traditionally admissible statements, and are allowed into evidence as statements of present sense impressions, business records, etc.
However, in some cases social media and networking statements face a tougher struggle in gaining admissibility at trial under the doctrine of hearsay. For example, excited utterances are statements made while the declarant is under the stress or excitement of an event. In such a case an attorney may argue that the time and though it takes to formulate, type out, and post a statement will effectively remove the declarant from a stressed or excited state of mind back into a rational state of being. However, the counter argument can be made a declarant who updates their status or tweets multiple times a day, every day, could make such a statement while still remaining under the stress or excitement of the situation.
In either case the outcome of admissibility seems dependent on the particular facts of the case, the assertions being made, and the presiding judge, as to whether or not social media and networking statements will be admissible in court. Moreover, there appears to be a present trend towards the admissibility of such social media and networking statements rather than simply allowing them in isolated, case-by-case occurrences. This trend of admissibility, where it is applicable, is evidence of change, of an evolution within the legal profession, of an attempt at survival during a turbulent and rapid cycle of technological
