Captain Milott has an interesting article about the use and interpretation of emojis and emoticons in criminal trials when they are part of a text, email, or some other social media message. Many sexual assault courts-martial involve texts and emails between the complaining witness and a suspect–is there a damaging admission, a confession, or something helpful in defense?
Check out 44(3) The Reporter 61 (2017).
Expressing emotion in our digital lives presents unique challenges. Articulating joy, sadness, or laughter in non-verbal, non-word characters is a learned skill which can be interpreted differently than the author intended. Despite the danger of misinterpretation inherent in the use of emojis and emoticons, their popularity has increased since their online debut in the early 1980s.
Captain Milott observes that “At least one federal court has interpreted the significance of an emoticon. In Enjaian v. Schlissel, [No. 14-cv-13297, 2015 U.S. Dist. LEXIS 68511, 8–9 (E.D. Mich. 27 May 2016)] one student sent threatening messages to another. The offending student claimed he minimized the threats through the use of emoticons.” And, he observes, “At least one state court is taking note of the role emojis can play in the law.” See In re L.F., No. A142296, 2015 Cal. App. Lexis 3916, at 2–3 (Cal. Ct. App. 3 June 2015) (unpub.).