How should digital evidence be presented to juries? Should emoticons and other symbols be translated into words and read aloud by prosecutors and defense attorneys? As their popularity has grown with the advent of apps, such as Emoji, emoticons, have been figuring into litigation more and more frequently over the course of the past few years. They are presented as evidence of threats and are also used to cast defendants in a (slightly) better light. Below is a selection of recent cases that demonstrate their varied usage in criminal and civil matters.

To tell a complete story: United States v. Ulbricht

Ross Ulbricht, the brains behind the “online black-market bazaar” called Silk Road, was recently convicted of all of the seven counts with which he was charged, including narcotics and money laundering conspiracies. Early on in the trial that took place in January, Ulbricht’s attorney objected to the prosecutor’s incomplete reading of a document; he had omitted descriptions of the emoticons that appeared therein. Ulbricht’s attorney appreciated the value of these communication tools before the trial had begun, asking that the jury be allowed to read for themselves all online communications entered into evidence. Eventually, the Honorable Katherine B. Forrest agreed, and she instructed the jury to read the online communications, stating, “They are meant to be read. The jury should note the punctuation and emoticons.”

To garner sympathy: State of New York v. Spears

After a month-long jury trial, single mother Lacey Spears of Westchester County, New York was found guilty of second-degree murder for poisoning her 5-year-old son with lethal doses of salt. Spears had blogged about her son’s health problems for years. Authorities became suspicious when doctors discovered the “alarming sodium level” in the child’s body. Throughout the trial, the defense team used her online posts to attempt to portray her as a loving mother. They entered into evidence a tweet reading, “My Sweet Angel Is In The Hospital For the 23rd Time,” which was “punctuated by a sad-faced, tearful emoji.”

To suggest jest: Elonis v. United States

The Supreme Court will soon tackle the question of what constitutes an actionable threat on social media and, perhaps, to what extent juries should factor emoticons into their assessment of evidence. Anthony Felonis was convicted and sentenced to 44 months in prison for making threats against his wife in the form of rap lyrics on his Facebook page. Leading up to the posting of these lyrics, Elonis had been fired for threatening a co-worker through social media. His lawyer in the Supreme Court case explained in the cert petition that the posting was “followed by an emoticon of a face with its tongue sticking out to indicate jest.” Indeed, the parties are asking the court to consider the “unique qualities” of social media where, as the Washington Post notes, “only the occasional emoticon may signal whether a writer is engaging in satire or black humor…or delivering the kind of grim warnings that have presaged school shootings and other acts of mass violence.” The Court is likely to issue its ruling sometime this spring.

To convict: State of New York v. Aristy

In January, 17-year-old Osiris Aristy posted on Facebook, “feel like katxhin a body right now… [expletive] run up on me, he gunna get blown down.” He followed this rant with an emoji of a police officer and three gun emojis pointing at it. Within a few days, the NYPD arrested Aristy at his home, and the DA’s office charged him with making a terroristic threat and weapon and marijuana possession. The criminal complaint alleged that Aristy’s Facebook posts “constituted a threat against the police.” But in early February, a grand jury declined to indict him for the terror charges. Aristy still faces criminal charges for the possession of handgun and marijuana, which police officers found in his home after they tracked him down for his initial threats. A former NYPD officer with six years’ experienced commented, “Getting arrested for emojis is dumb. But people don’t ever take seriously the danger that the cops face. If I let some yelling slide, then what if a young cop is walking down the street and kids decide to throw bottles because they weren’t pressed earlier?”

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Emoticon symbols are becoming an increasingly common tool in digital communication, evoking the intonation of a voice and a cringe in the face. Emojis matter and will continue to take on new meanings as courts sort through these uses, and more.

 
 
 
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