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Should Emoji Hold Up in Court?

  • AuthorHolly Richmond
  • Published Thursday, March 26th, 2015
  • Comments12

A smiling pile of poop. A rainbow. A cat with hearts for eyes.

Do these belong in the courtroom?

Because they’ve been showing up there lately. Two months ago, 17-year-old Osiris Aristy was arrested for making a threat against the New York Police Department. His threat included a police officer emoji – a tiny cartoon symbol you can text someone; in this case, a man wearing a police cap – and three gun emoji. The Brooklyn resident posted them to his Facebook profile.

Of course, that wasn’t his entire message. Aristy also wrote “[Black man] run up on me, he gunna get blown down,” and, hours earlier, a photo of a gun with “feel like katxhin a body right now.” That was enough to get him charged with making a terroristic threat.

Aristy’s charges were dropped last month, but it’s pretty significant that he was charged at all. He’s not the first, either. Emoji have been used as evidence in a handful of recent court cases, raising the question, is it ethical to use these tiny, seemingly harmless cartoons as evidence? Especially since their meaning can be so murky?

Basically, do emoji count?

To answer that, let’s take a look at their prevalence, usage, and meaning.

First, emoji are definitely part of language. Currently, statistics about how many emoji have been texted are not available; however, on Twitter, people use them more often than hyphens, the number 5, or capital V. A dizzying real-time emoji tracker reports that the most popular emoji on Twitter, a face crying tears of joy, has been used more than 626 million times. Since there are some 720 emoji, total use on Twitter alone is probably in the hundreds of billions.

If their popularity alone isn’t proof enough that they’ve become part of the lexicon, well, ask officials at the Library of Congress and the Oxford English Dictionary. The former accepted a copy of Moby Dick made up completely of emoji in 2013. Two years earlier, the heart symbol became part of the Oxford English Dictionary, meaning “to heart” or “to love.” You can try to brush emoji off as fringe teen slang – their main home is on an iPhone screen, after all – but they’re increasingly becoming mainstream. Legal experts even say emoji are covered under our First Amendment right to freedom of speech.

So whether we like it or not, a cartoon pizza slice now counts as language.

Make no mistake, emoji are open to interpretation. For instance, using a winky face can be flirtatious, or at the end of a text that reads “I hate you,” express someone is joking. Some think the emoji of praying hands is actually a high five. You have to consider the relationship between the sender and the receiver, the context of the message, and typical use of the emoji itself. (A gun is less ambiguous than a wink.) Thanks to irony, sarcasm, and plain ol’ variations in usage, language is no straightforward thing.

So yes, it would be ridiculous to base an entire court case on emoji. As Wired writer Julia Greenberg writes, “None of these cases [that mentioned emoji] relied solely on the emoji, of course. Evidence, arrests, and prosecutions are far more complicated than that.”

But sometime soon, courts will have to answer Eli Hager, who asks on the criminal justice news site The Marshall Project, “[Are] emoji significant and unambiguous enough to be presented to the jury the same way the words are? Are some emoji significant, but others, not?” The gun emoji, for instance, seems especially incriminating and straightforward.

In the case of 22-year-old Christopher Levi Jackson, however, using the gun emoji a whopping 27 times wasn’t enough to get him charged with murder. A few hours after someone shot and killed 25-year-old Travis Mitchell, Jackson texted Mitchell’s sister, “It’s a chess game. I’m up two moves a head … try again. Bang bang, bang,” followed by 27 gun emoji. Detectives on the case believed that Jackson’s text meant Mitchell wasn’t the intended victim, and Mitchell planned to kill whoever was. Police arrested Mitchell for first-degree murder, but without further evidence, they had to release him.

And that’s how it should be. As D.C. attorney John Elwood told Buzzfeed, “Words that could be construed as threatening are enough to make an arrest, but they shouldn’t be enough to convict someone.” Emoji should be examined with as much context as possible, in light of the sender’s criminal record, past behavior, and other factors. Time will tell how much value juries place on them.

For now, the emoji is in its infancy; words are still our main units of language. You wouldn’t build a court case on body language, even though it’s a huge part of communication (55 percent, according to researcher Albert Mehrabian, who came up with the famous “93 percent of language is nonverbal” statistic). There isn’t a benchmark yet for emoji use in court. Lawyers can’t even agree on whether emoji should be read or shown in the courtroom.

In a recent court case, for example, the defendant’s lawyer argued that emoji should be included as evidence because they shed light on the rest of the message. The defendant’s lawyer not only asked the judge to include an emoji after a particular statement, but to show the emoji to the jury. In a letter to the judge, the lawyer argued that describing emoji aloud wasn’t sufficient because they “cannot be reliably or adequately conveyed orally.”

The bottom line is, just because you can say or text something doesn’t mean it’s free of consequences. Emoji are part of how we communicate, so they have repercussions. At the risk of sounding like an after-school special, think before you text.

After all, interpretation often matters more than intention. Do you really want to wind up in jail for threatening arson because you used 12 angry faces and 16 fire emoji? Didn’t think so. Because even if you’re  , jail is .

Holly Richmond is a Portland-based writer. Her favorite emoji is the smiling poop, but the dolphin is a close second. Send her emoji on Twitter.

12 Responses to “Should Emoji Hold Up in Court?”

  1. Reed Ronan says:

    I think that this essay brings up a good point. Emoji are a part of everyday language, especially in the growing age range of people who use them and as technology advances. Using an emoji is almost as effective as using a facial expression or an expression that has nonverbal meaning. Emoji should be used as evidence against a person, but as far to say that an emoji could convict someone? I do not know.

  2. Megan R-R says:

    I found this article especially interesting because I personally use emojis quite often and I have some friends who almost overuse them in texting conversation. I definitely think that emojis should be used as potential evidence in cases because it is form of communication, but I don’t think it should be considered sufficient enough to convict someone based on a “conversation” of emojis.

  3. Madeline Wood says:

    It is crazy to think that a small picture can create such a fuss, but the truth is an emoji is a more than just a picture. As said in the article, emojis are becoming more and more mainstream, and as more people use emojis, more meanings can be given to the images. I think that emojis should be taken seriously in court. I understand that they are usually used for a playful manner, but when a gun emoji can be connected to a murder, I think it would be a big mistake to ignore the pretty explicit meaning of the chosen emoji. Emojis are a form of communication, and that is why they should be taken seriously. Whether it be a book, a cave painting, or a hand sign, anything that sends some form of a message is worthy of further investigation.

  4. Marissa says:

    While I do agree with the statement that emojis are becoming part of our language, I feel the first case described in this article is ridiculous. This is a case of a teenager being stupid on social media, nothing more. Now, it would have been different if he would have sent a gun emoji directly to someone along wit ha threatening message. But, I’ve seen way worse things on Facebook and no one was brought in for terrorism in those cases. Not only this, but in the article is even says emojis are protected under free speech. How did this kid get in trouble for this posting on a public forum, to no one in particular?

  5. Andrea Stacy says:

    I completely agree with the fact that some emoji are significant enough to be presented and read the same way as words and others could have several different meanings, based on the context and relationship between the sender and receiver. However, deciding which emoji are outright incriminating in a court of law would be a very tricky and subjective task. But like they always say, “A picture is worth a thousand words.” If a gun emoji is used as part of a threat I think it should absolutely be interpreted the way a picture of gun along with the threat would be understood.

  6. Betsy Melin says:

    I think this is an interesting article which makes some good points about modern communication. I think that since emojis are a part of the way we communicate they must be addressed when using messages in court cases. It will become difficult to decipher the intent of emoji use but it is important that the entirety of symbols used to convey a message are taken into account. So I agree with the warning, think before you text.

  7. V says:

    I mainly agree with this article and feel it puts a good emphasis on our current technology barrings. In 2015 emojis are a large part of how we communicate with one another. If you misuse them privately or publicly, a negative outcome can easily happen.

  8. Taylor Powers says:

    I agree that if emojis are to be used in court they should be examined contextually. The whole idea of a lawyer presenting a judge with an emoji as evidence in a case may seem silly, but they are becoming an increasingly large part of how we communicate this day in age and can even aid in understanding the meaning of a text message. Because so much of what people say can be misconstrued through text, I think even the slightest help in decoding what people truly mean is worth a second look–they are essentially the body language of the digital world.

  9. Brianna A says:

    Emojis are as bland as texts, I think. Especially in today’s modern communication world where if you have a smart phone, you are automatically exposed to emojis. I think sending a message in all emojis could convey the same message as words, so yes I think it could get you in trouble.

  10. Michal Kaniewski says:

    I definitely think that emojis count. They are definitely a new way of communication, and with shorted text responses becoming much more prominent, we are seeing more and more emojis in everyday text language, whether it’s in Text messages, facebook messages, or emails. I do think that this matter should be taken a bit seriously, because although we have a right to free speech, this kid was showing a lot of disrespect to a police officer, and I believe that the police should be respected; a few rotten eggs don’t spoil the bunch.

  11. Jessica Freeman says:

    In my opinion, if any symbols or words came from a person making any threats or accusations, it should be taken seriously. Whether an explanation may be needed, Emoji can tell a story or intention too. To me, it is not necessarily the Emoji in the bad situation, but it is the person who wrote it and their intent on the matter. They all work together, pictures and words, and if anything appear suspicious or of malicious intent then it should be of concern.

  12. Jacob Diaz says:

    It’s is important that every aspect of a text be examined in a criminal proceeding. Like Richmond says when view in context of the conversation emojis can be very telling as to what a persons intentions were. The example with the gun in the murder case for instance. However, while I agree that emojis can be useful in trying to comprehend the intentions of an individual they do have limited value in the legal system. They can help make sense of intent but not condemn.

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