It’s virtually automatic that lawyers in both criminal and civil cases will seek to examine your social media posts. Attorneys will ask to review your Facebook posts, your Twitter feeds, and any text that you’ve posted. It’s why many lawyers advise their clients to stay off social media as soon as their case begin. Clients should always be cautious, even if a case isn’t active, about what they say on social media.

Online posting now includes much more than posting text. It includes photographs and all sorts of images. One new area of concern for defendants is the posting of emojis and emoticons. Emojis are the smiley faces and other pictures that are often used as shorthand for verbal text. Emoticons are characters that look like facial expressions.

There are two problems with emojis and emoticons in a criminal case. The first occurs when the message of the emoji is clear, and that clarity harms your case. The second happens if the emoji message is ambiguous/unclear, which can also be used against you in court – even if your intent for using the emoji in your message was completely innocent.

The Verge reported on recent emoji court trends, including one instructive California criminal case. In the criminal case, the government tried to use pictures of high-heels and money combined with the text, “Teamwork make the dream work” – to suggest that a defendant was “guilty of pimping charges.” The prosecution argued the text and emoji suggest a “working relationship.” The defendant argued that the emoji and text only meant a romantic relationship.

Could a “smiley” face really affect your case in front of a judge?

While many judges aren’t deciding the merits of cases based on emojis and emoticons, and some are even dismissing them as not relevant, there are still concerns. The reading of text can change depending on which emoticons and emojis are present.

Law professor Eric Goldman has been studying how these images affect cases. He admits that his study may be missing many images because Internet and database searches can look for the word “emoji” or the work “emoticon,” but not the pictures or representations. Emoticons have been found mostly in sex-offender cases. Emojis have been found in a broad range of cases – any case where communication between people is an issue.

Professor Goldman says the emoticon can be used to show a person’s intent, state of mind, or “propensity to commit a crime.” He cited one civil case where an Israeli couple was found responsible for using emojis (including a champagne bottle, a comet, and a squirrel) to indicate they were interested in a rental contract. The landlord claimed he relied on their “optimism” as shown in the emojis in not pursuing other rental offers.

Some of the additional complications with emoji and emoticon testimony include:

• Should experts be allowed to testify as to what these images mean? If so, should the expert be a linguist or someone familiar with the crime being charged?
• Should the platform where the emoji was used, a smartphone vs a desktop for example, make a difference?
• Does the make and model of the device where the emoji is read make a difference?
• Can the emoji be judged without looking at the text and the context?

Times changes. Courts adapt. Today’s excluded evidence may be admissible tomorrow. Today’s sunny smile may land you in prison tomorrow. For help with all aspects of your criminal case, the Knoxville criminal defense lawyers at Banks and Jones have the experience and resources to help you get justice. We have been fighting for defendants for more than 25 years. To speak with a lawyer who will assert all your rights, call us today at 865-546-2141 or fill out our contact form.