A Smiley Face Can Make All the Difference!

February 9, 2015

In an evolving world where people use technology to communicate more and more, the legal world has to make changes to keep up. For instance, text messaging and online chatting are becoming main forms of communication for many people, which are both much different than face-to-face communication because you cannot hear the tone of the person you are communicating with, or see her facial expression.
However, there are certain things you can do with text messages and online chats to convey tone, such as using multiple exclamation points at the end of a sentence, or using all capital letters. One main tool that people use to convey tone are emoticons, which are pictures of faces that have expressions on them ranging from smiley faces to crying faces. Courts now have to decide whether text messages and online chats should be read aloud to the jury, or printed out with things such as emoticons included so the jury can read the message the same way as the sender intended for it to be read by who she was communicating with.
This problem became an issue in the Silk Road case, which was decided on February 4th, 2015. In this case, defendant Ross Ulbricht was convicted of all counts he was tried for, including “narcotics distribution and criminal enterprise charges that carry a potential life prison term.” These convictions were made against Ulbricht for running “a hidden website that generated $213 million” in illegal sales over a period of two years, mostly consisting of illegal drug sales. People have compared it to being the eBay of drug selling online.
The court found that he was, in fact, the mastermind behind the website, which is a major reason for the serious charges he was convicted for, but Ulbricht claims he was set up by others that were higher up in the business. A piece of evidence the defense wanted to introduce was the emoticons that Ulbricht used in online messages with other Silk Road employees to show the tone of playfulness in many of the messages he sent, which in turn could make the jury conclude he was not being serious when he sent the messages.
The prosecution argued that text from online chats is analogous to wiretapped conversations, which are routinely played aloud for jurors; therefore the text contained in the online chats should be read aloud, as well.

The defense argued that emoticons cannot be adequately conveyed orally, and are “designed to be absorbed through reading, not through hearing.”

The judge agreed, stating the prosecution’s argument was flawed because wiretapped conversations are intended oral communication, while online chatting is not. This holding makes a lot of sense in today’s world, if you think about it. Anyone who has tried flirting with someone you just met over text messages knows the importance of emoticons; a well-placed emoticon can possibly get a giggle on the receiving end, while a wrongly-judged one could make you come off as a total creep!
Nonetheless, Mr. Ulbricht was still convicted of his crimes even though he was able to introduce his emoticons. However, the rulings on how to convey devices such as these to juries are popping up all over. For instance, in a current Supreme Court case, a man who posted many threatening messages about his wife on Facebook used the emoticon showing a face with a tongue sticking out after some of his posts. He wants this emoticon shown to the jury to help prove he posted the messages in jest. It will be interesting to see how much probative value a jury gives emoticons such as these when making a decision. But even with probative value set aside, the importance of conveying the tones of these messages are crucial because as time goes on, certainly more and more text messages and online chats will be introduced as evidence in court.