ABA Techshow

What do attorneys have to know about emojis in evidence?

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“Emojis, especially when they are strung together, can have different intent and meanings, and it’s important to [understand] that,” said Patrick Wright, managing partner of the Wright Firm in Texas, at an ABA Techshow 2024 panel Friday. (Photo by Amanda Robert/ABA Journal)

For lawyers who may be fretting over how to handle emojis and emoticons in their cases, Patrick Wright starts with this simple advice: Go back to the Federal Rules of Evidence.

According to Rule 401, which is also included in many state rules, evidence is relevant if it possesses ample probative value to warrant its inclusion.

“We know that irrelevant evidence is not admissible,” said Wright, managing partner of the Wright Firm in Texas and a member of the ABA Techshow 2024’s planning board. “And if we are the proponent of that evidence, we have to present sufficient evidence to support it.”

“With the advent of this technology, I will tell you, you don’t need to learn anything new,” he added. “You go back to the basics of existing rules in your states and the Federal Rules of Evidence.”

Speaking Friday at a Techshow panel, Wright explained that emojis are images, symbols or icons used in text messages, emails or social media to express an emotion or an attitude. Meanwhile, emoticons also convey emotions but are created using typeface. “Cutting-Edge Electronic Evidence: Explore Emojiland – How Will You Decode Tomorrow’s Evidence?” was the name of the panel.

Wright provided several examples of courts that have interpreted emojis and emoticons and ruled on their meanings.

In 2015, a Delaware judge said a winking emoticon was used by a man who “was amused by yet another opportunity to harass” a colleague who did not want to see him. The man secretly bought a plane ticket next to his colleague and claimed that he was joking around in this message to friends: “Was next to [the woman] on the plane to Paris and she switched seats;)” The court, instead, interpreted it as a menacing symbol.

Follow along with the ABA Journal’s coverage of the ABA Techshow 2024 here.

In 2017, a Massachusetts court ruled that a defendant’s use of an emoji with Xs for eyes and the nickname of the victim suggested a premediated homicide, rather than an accidental death.

And in 2019, an Ohio court found that a man violated a temporary protection order when he sent a waving hand emoji to the victim.

In addition to becoming familiar with these rulings, Wright encouraged attorneys to understand the meanings of emojis and emoticons that they may come across in their cases.

He cautioned that emojis often have alternative or hidden meanings. For example, an emoji of a snowflake or a person skiing could mean cocaine.

“A lot of these cases are showing different uses of the technology,” he said. “But it also shows that all across the U.S., these issues are factoring into cases, and if you’re doing litigation, it’s going to come up.”

“Emojis, especially when they are strung together, can have different intent and meanings, and it’s important to [understand] that,” he added.

Wright added that the same rules apply when interpreting other forms of electronic communication, including graphics interchange formats, or GIFs, and photographs.

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