From fingerprinting to DNA to cell phone records, what technology spawns sooner or later makes its way into criminal proceedings as evidence. More recently, the Internet has added its novelties to the courtroom repertoire: sexts, emails, tweets.
So it was probably inevitable that emojis (and their more basic predecessor, emoticons) would get their day in court. In social media and messaging apps, emojis are one-character, non-alphabetic symbols — , , , and the like. Over the last year and a half, these little online signifiers have figured, peripherally, in at least nine cases, including six in the last two months.
In none of these cases did the result hinge on how emojis were interpreted. But the courtroom exchanges indicate that at some point in the near future, the court system will have to determine whether these symbols express such specific and unambiguous meaning that, like words, they can be introduced into evidence.
Here is a sampling of the cases:
In Pittsburgh, a man convicted of first-degree murder faces a mandatory life sentence for poisoning his wife. He allegedly told her that she could get rid of a headache by drinking a serving of creatine, which he had laced with cyanide. He punctuated the suggestion with a smiley-face emoticon.
In Kentucky, a woman is on trial for poisoning her 5-year-old son. Her defense team, hoping to portray her as a loving mother, has entered into evidence a tweet reading "My Sweet Angel Is In The Hospital..." — punctuated by a sad-faced, tearful emoji.
In Chicago, a 19-year-old stands accused of providing material support for terrorism; he was allegedly planning to flee the country and join ISIS in Iraq. Among the evidence is an ISIS video that the defendant and his sister adorned with smiley faces and hearts, which prosecutors said indicated "twisted delight."
In the Silk Road online piracy trial, emojis have been a sidelight. Prosecutors had been reading aloud from a series of chat logs — without mentioning smiley-faces and other emoticons — when Joshua L. Dratel, a lawyer for the defense, argued that emoticons were significant and should be entered into the evidentiary record. After a few minutes of deliberation, Judge Katherine B. Forrest decided that all emojis and emoticons should also be read aloud.
As the New York Times pointed out, these cases raise a slew of questions that, going forward, could factor into how the courts deal with emojis. When an online post containing an emoji is presented as evidence, is the emoji significant and unambiguous enough to be presented to the jury the same way the words are? Are some emojis significant, but others, not?
And how should the jury be made aware of the emoji? By reading it aloud, i.e. by saying the words, "smiley face"? Or, since emojis are meant to be read, not heard, should jurors be shown a visual of a smiley face? And what if individual jurors aren't familiar with a certain emoji? Should they be educated? If so, how?
Many of the remaining cases deal with the question of how online threats, sometimes laced with emojis, should be interpreted.
In a case that went before the Supreme Court in December, a man convicted of making Facebook threats against his ex-wife argued that the threats were not meant to be taken seriously. In making that claim, he showed the court how he had punctuated one particularly violent tirade with a smiley-face with the tongue sticking out.
In Brooklyn, N.Y., a 17-year-old was recently arrested for posting a threatening Facebook status update punctuated with a police officer emoji and three gun emojis.
In Elko, Nev., a judge ruled on December 10 that a defendant's violent blog posts, many of which included emojis, could be entered as evidence that he was planning to commit murder.
And in Baton Rouge, La., a grand jury in October opted not to indict a man accused of first-degree murder despite the fact that he had sent a threatening text message laced with 27 emojis of firearms.