by David Pomeroy
The ubiquitous emoji—the communication tool widely used in texts, emails and social media communications—is showing up in courtrooms. If you are reading this blog you are familiar with emojis—those little symbols intended to convey emotion within a written text. They are the successors to the emoticons such as: :), :(, or ;) and which look like this: or many other forms. Courts in civil and criminal cases are grappling with the question of whether these emojis have a meaning so unequivocal as to be considered as evidence.
This has significance locally. Perhaps you have read about the local elected official who is charged with violating election laws by having too close a relationship with a “dark money” group formed to support her election. This dark money group was referred to as “the Independent Group” or the “IE” in communications by the official and her supporters. The news has reported that the official in a text message wrote:
Obviously, we can’t do anything about the IE.
This shows that the official was truly independent of the Independent Group, right? Well yes, but the official added a “smiley face” emoticon, supposedly a :). This addition could be interpreted to completely change the meaning of the text. The prosecutor certainly thinks so.
Overall, courts have held in both civil and criminal cases that emojis can have significant evidentiary value. Emojis provide context essential to understanding a text phrase or an online exchange completely. Emojis are a substitute for facial expressions or gestures which are a part of face-to-face communication. In one high profile criminal case, the court required that when online communications were read in court, jurors should also read the emoticons. Emojis have also been considered in civil cases. Courts have held in civil cases that emojis must be viewed in context to determine if they change, detract from, or add emphasis to the meaning of statements containing them.
The form and manner of communication change over time and the evidentiary value of such form and manner must be constantly assessed. We may have an opportunity to see how important one little emoji can become.
Download Blog in PDF Format
Posted on Fri, November 4, 2016
by Andrews Davis filed under