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Communications, Technology, and Present Sense Impressions

I was honored to be asked to respond to Professor Bellin's insightful article, Facebook, Twitter, and the Uncertain Future of Present Sense Impressions. Since I agree with much of what he says, my Response is limited to two tasks: parsing the relationship between modes of communication and the present sense impression exception, and assessing the extent to which at least certain types of electronic communication might be incorporated into the percipient witness requirement he proposes…I have, for well over a decade, devoted much of my time to researching and writing about how our use of cyberspace sometimes requires us to modify existing legal rules but often does not. As I explain when I speak and write on this topic, law—except for specialized areas such as patent and copyright—is concerned with people, not with technology, as such. Given that, I believe we need to be careful not to overestimate the impact technology has on existing law; in many instances, it may be possible to accommodate uses of technology with rules as they exist or by tweaking them only slightly.