Legal system grapples with evidentiary issues in cases involving emoji, emoticons

Many of our readers who own iphones or who use social media sites are familiar with the terms emoticons and emoji. These terms refer, of course, to small icons depicting various types of emotions, objects and ideas. Use of emoticons and emoji has increased significantly in recent years due to their inclusion in text messaging programs, particularly on mobile devices.

One of the issues with emoji and emoticons, both from a social and a legal standpoint, is that it isn’t always clear what is being communicated. Because of this, interpretation of messages including such icons can be highly subjective. Various interpretations might be given to one and the same message, even given the context in which the message was sent.

This issue is likely to come into play in the case of a 12-year-old Virginia girl who was hit with criminal charges for an Instagram post last December that included icons of guns, knives, bombs and a police officer. The post ended up coming to the attention of a resource officer at the girl’s middle school, which prompted the school to investigate and police to obtain a search warrant.

The girl admitted to posting the messages under another Instagram user’s account and was charged with making threatening statements against the school, as well as computer harassment. Interestingly, after looking into the situation, the school deemed the threat not credible. According to her mother, she posted the message in response to bullying at school.

As a result of the Virginia case and other internet crime cases like it, an issue that has arisen is whether emoji and emoticon evidence should even be presented to juries. In a future post, we’ll look at this issue further in the context of evidentiary issues such as reliability, relevance and prejudice.