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Should Emojis and Emoticons Be Admitted into Evidence in Criminal Proceedings?

Technology has made a significant impact in our day-to-day lives. With technology, we have invented new applications for its use, and it has even re-invented the English language to support the increasingly high-speed nature of technology. Texts have shorthanded the way in which we communicate: where dashes, symbols, emojis, and LOLs have creeped into our exchanges and have various meanings depending on the context. New language and shorthand communications bring confusion as to the weight that should be given to these exchanges, especially when they are being presented as evidence. What does a 😉 mean if it’s found in texts that implicate a suspect in a crime? Does an emoji of an eggplant, a girl dancing, or an angry face found in a communication suggest emotions that should be admitted as evidence?

Emoticons and Emojis Found Necessary in Silk Road Case

More and more cases that involve communication that have emoticons and emojis are surfacing and creating issues as to their admissibility. Already texts and emails lose their subtext when the exchanges are in shorthand and tone is almost impossible to read, especially when sarcasm or a joke is potentially expressed. The presence of emoticons and emojis in evidence has come to light due to the high profile Silk Road case. Ross Ulbricht, the criminal defendant convicted of operationalizing Silk Road, used text messages to conduct business that was rife with emojis and symbols. Though originally stricken from the document evidence, the emojis and symbols were put back into the documents after an argument was put forth that the texts and messages were incomplete without them.

Elonis vs. the United States and the U.S. Supreme Court’s Decision to Decline to Rule on Emojis

The U.S. Supreme Court remanded another case, Elonis vs. United States, to lower courts to deal with the issue of emojis where the criminal defendant had used emoticons and symbols in his violent and graphic postings on social media advocating violence against his wife and others.

Emoticons and Emojis: Global Use and Interpretation

So far there, the admissibility and status of emoticons and emojis have yet to be determined by the U.S. Supreme Court but several courts are reviewing the value of the emoticon and emoji in evidence on a case-by-case basis. In the United Kingdom, British courts are starting to interpret emoticons and emojis and allowing them into evidence to show state of mind and possible malice. Around the world, other groups have taken to building databases and charting the emoticons and emojis on a spectrum of sentiment and feelings, whereby certain emojis and emoticons are being classified based on everyday, common understandings of what these symbols and pictures actually mean. The attempt to build a database or spectrum, however, has been failing due to some of the counterintuitive uses of certain emoticons used to express sarcasm or a joke. Not every smiley face represents a happy emotion.

The Future of Emojis and Emoticons in U.S. Criminal Courts

Overall, symbols, emojis, and emoticons, even at their infancy as evidence in criminal cases, are seeing more and more courts that are taking their presence seriously, regardless of whether each emoticon or emoji correlates with one single meaning. Courts are viewing emoticons and emojis as context-providers, to better interpret the overall meaning of the exchange or communication being entered into evidence.

Experienced Criminal Defense Attorney in Fort Lauderdale

If you or a loved one has been charged with a criminal offense, it is important to speak with an experienced defense attorney like Kevin J. Kulik who will advocate on your behalf and guide you throughout your trial. Contact Kevin J. Kulik today for a free and confidential consultation in the Fort Lauderdale area.

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