Next Witness: Will The Yellow Smiley Face Take The Stand?

Feb 8, 2015
Originally published on February 11, 2015 1:21 pm

Emojis can be a lot of fun. Little pictures on our phones seem to express sentiments when words just fall short. Sometimes we need to punctuate our sentences with a sad cat, floating hearts, maybe an alien head.

They aren't complicated when they appear in our personal email or texts, but emojis are now popping up in a place where their meanings are closely scrutinized: courtrooms.

The images have been entered as evidence in a handful of cases. In a case before the Supreme Court in December, a man convicted for threatening his ex-wife on Facebook said the threats were not meant to be taken seriously.

As evidence, his lawyers showed a violent tirade that was punctuated with a smiley-face and a tongue sticking out.

In January, in the federal court trial of Ross Ulbricht, a California man charged with running an online drug trafficking site called Silk Road, emojis again played a role.

Ulbricht's lawyer argued that prosecutors failed to include a smiley face that was part of an Internet post when they read the text to the jury.

"The judge actually found that the emojis should be read into the testimony and that the jury should have the ability to read the texts or online messages themselves so that they could see the emojis in context," Dalia Topelson Ritvo says.

Topelson Ritvo, an assistant director of Harvard Law School's Cyberlaw Clinic, tells NPR's Rachel Martin that context is crucial for understanding just what an alien head might mean.


Interview Highlights

On the difficulty of understanding emojis

"The ideal situation would be that if I wrote a text, and my text was admitted as evidence in trial, then the attorneys could ask me what I meant by that. This is also the same thing that happens, for instance, when slang is introduced into evidence. Not everybody uses the same words in the same way, and it's up to the attorneys, in presenting their cases, to be able to clarify that."

"Of course, if it's a little alien head, I can't, out of context, say what that would mean with respect to a certain portion of text."

On the growing use of emojis in court

"As these types of communications become more ubiquitous, and potentially a richer source of evidence in disputes, I think these types of mechanisms to indicate tone or intent could really come to play at trial, especially in criminal cases where the intention of a person may really be at issue."

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Transcript

RACHEL MARTIN, HOST:

Emojis can be a whole lot of fun - you know, those little pictures on our phones that seem to express sentiments when words fall short. Sometimes we need to punctuate our thoughts and phrases with a sad cat, floating hearts, maybe an alien had. Not so complicated when they appear in our personal email or text, but emojis are now popping up in an odd place - courtrooms. These odd little images have been entered as evidence in a handful of cases in just the past few months. Here to help us make sense of this is Dalia Topelson Ritvo. She is the assistant director of Harvard Law School's Cyber Law Clinic. Thanks so much for talking with us.

DALIA TOPELSON RITVO: My pleasure.

MARTIN: So, Dalia, can you walk us through one of these recent examples, when and how emojis were entered as evidence?

TOPELSON RITVO: Yes, probably the most recent and high-profile case is a federal case against the person who ran an online market for drug trafficking called Silk Road. And essentially, I think the prosecution started reading emoticon at the end. So it didn't say something like smiley face or frowny face. And the defense pretty much said this was not an accurate record of the evidence that was being presented. So the judge actually found that the emojis should be read into the testimony and the jurors should have the ability to read the texts or online messages themselves so that they could see the emojis in context.

MARTIN: But some of these things are just random, just strange images that seem completely unrelated to the text. How do you deal with those in a courtroom situation because you don't want the lawyers to be telling a jury what a certain emoticon means because they would be then kind of swaying their opinion of that?

TOPELSON RITVO: I think that's correct. And I think potentially or the ideal situation would be that if I wrote a text, and my text was admitted as evidence in trial, then the attorneys could ask me what I meant by that. This is also the same thing that happens, you know, for instance, when slang is introduced into evidence. Not everybody uses the same words in the same way. And it's up to the attorneys in presenting their cases to be able to clarify that in a way that gets to the actual meaning intended by the speaker. And, of course, if it's a little alien head, you know, I can't out of context say what that would mean with respect to a certain portion of text.

MARTIN: But I do hear you saying that this is not trivial, that these things matter.

TOPELSON RITVO: I would say it would. I think as these types of communications become more ubiquitous and potentially a richer source of evidence in disputes, I think these types of mechanisms to indicate tone or intent couldn really come to play at trial, especially in criminal cases where the intention of a person may really be at issue.

MARTIN: Dalia Topelson Ritvo. She is the assistant director of Harvard Law School's Cyber Law Clinic. Thanks so much for talking with us, Dalia.

TOPELSON RITVO: Thank you. Transcript provided by NPR, Copyright NPR.