By: Gary Dunn*
Abstract
The growth of social media, especially the archiving of millions of social media posts from many years ago, (including in the Library of Congress’s archive of tweets from 2006 to 2017), presents unique evidentiary challenges that were unanticipated by the current Federal Rules of Evidence (“FRE”). For example, parties and their experts now scour the web for social media posts that may be useful at trial. The use of social media posts raises important questions about when these statements can be used despite the declarant not being available to testify, depriving parties and juries of the benefit of cross-examination regarding the statement. Two hearsay exceptions in the FRE impacted by this radical shift are the present sense impressions and excited utterances.
Fortunately, prominent legal scholar Richard Posner, former Judge of the Seventh Circuit, posed a viable solution adaptable to these developments. In United States v. Boyce, Judge Posner’s concurrence argued that the residual approach under FRE 807 should replace both the present sense impression and excited utterance exceptions. Under the residual approach, each possible present sense impression or excited utterance is assessed on a case-by-case basis of circumstantial reliability. While Boyce did not concern social media evidence, Judge Posner’s concurrence is still invaluable to social media statements. Indeed, Judge Posner highlighted the current judicial elasticity in which judges already employ a covert residual approach masked under the exceptions, plus their psychological deficiencies. Thus, the cumulative impact of judicial elasticity and psychological deficiencies, now exacerbated by the social media catalyst, favors adopting the residual approach.
*J.D. University of Virginia School of Law, Class of 2018. I would like to thank Professor Gregory Mitchell, Joseph Weintraub–Bank of America Distinguished Professor of Law, University of Virginia School of Law, and Anthony M. Deardurff for their comments. Additionally, I would also like to dedicate this Article to my former Mock Trial coaches from St. John’s University, the late Bernard G. Helldorfer, Oscar Holt, and Kareem Vessup, where I was first exposed to the Federal Rules of Evidence.