Next Witness: Will The Yellow Smiley Face Take The Stand?

RACHEL MARTIN, HOST:

Emojis can be a whole lot of fun - you know, those little pictures on our phones that seem to express sentiments when words fall short. Sometimes we need to punctuate our thoughts and phrases with a sad cat, floating hearts, maybe an alien had. Not so complicated when they appear in our personal email or text, but emojis are now popping up in an odd place - courtrooms. These odd little images have been entered as evidence in a handful of cases in just the past few months. Here to help us make sense of this is Dalia Topelson Ritvo. She is the assistant director of Harvard Law School's Cyber Law Clinic. Thanks so much for talking with us.

DALIA TOPELSON RITVO: My pleasure.

MARTIN: So, Dalia, can you walk us through one of these recent examples, when and how emojis were entered as evidence?

TOPELSON RITVO: Yes, probably the most recent and high-profile case is a federal case against the person who ran an online market for drug trafficking called Silk Road. And essentially, I think the prosecution started reading emoticon at the end. So it didn't say something like smiley face or frowny face. And the defense pretty much said this was not an accurate record of the evidence that was being presented. So the judge actually found that the emojis should be read into the testimony and the jurors should have the ability to read the texts or online messages themselves so that they could see the emojis in context.

MARTIN: But some of these things are just random, just strange images that seem completely unrelated to the text. How do you deal with those in a courtroom situation because you don't want the lawyers to be telling a jury what a certain emoticon means because they would be then kind of swaying their opinion of that?

TOPELSON RITVO: I think that's correct. And I think potentially or the ideal situation would be that if I wrote a text, and my text was admitted as evidence in trial, then the attorneys could ask me what I meant by that. This is also the same thing that happens, you know, for instance, when slang is introduced into evidence. Not everybody uses the same words in the same way. And it's up to the attorneys in presenting their cases to be able to clarify that in a way that gets to the actual meaning intended by the speaker. And, of course, if it's a little alien head, you know, I can't out of context say what that would mean with respect to a certain portion of text.

MARTIN: But I do hear you saying that this is not trivial, that these things matter.

TOPELSON RITVO: I would say it would. I think as these types of communications become more ubiquitous and potentially a richer source of evidence in disputes, I think these types of mechanisms to indicate tone or intent couldn really come to play at trial, especially in criminal cases where the intention of a person may really be at issue.

MARTIN: Dalia Topelson Ritvo. She is the assistant director of Harvard Law School's Cyber Law Clinic. Thanks so much for talking with us, Dalia.

TOPELSON RITVO: Thank you.

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