The Current

Emoji evidence is causing confused faces in courtrooms

Emojis can present a challenge in court as judges try to decode the nuances of winking faces, thinking faces and faces blowing a kiss.
A student protest in Budapest, Hungary on Jan. 19. Emojis are increasingly becoming a mainstream method of communication. (ATTILA KISBENEDEK/AFP/Getty Images)

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Emojis can present a challenge in court as judges try to decode the nuances of winking faces, thinking faces and faces blowing a kiss.

As language continually evolves, emojis are emerging as evidence in court, according to a criminal defence lawyer who recently submitted the icons in a case. And their meanings are not always clear cut.

"What courts look at are what people's words and actions mean," Ari Goldkind says.

Last fall, he submitted emojis as evidence at a sexual assault trial in Toronto.

"She testified over and over that she went there against her will; [that] he was pressuring her," Goldkind says. "I said, 'Well, wait a minute, I have all the text messages from their phone.'"

"You put that up before the jury and everything that she's texting including emojis — with smiley faces and winky faces… — that was so important to the jury and so important to the judge; that the plain, ordinary interpretation of her word showed her to be not somebody worthy of belief."

Goldkind's client was found not guilty.

Emoji experts?

Beyond the expressive faces shown in these Facebook emojis is a world of symbols that can have multiple meanings but still convey more than words. (Facebook)

Elizabeth Kirley, an adjunct professor at York University's Osgoode Hall Law School, has researched emojis being used as evidence in court in several countries, resulting in a paper called The Emoji Factor: Humanizing the Emerging Law of Digital Speech.

Some examples have clear-cut meanings, Elizabeth Kirley says.

She says a straightforward example from an American case is "a message that was sent that was comprised of a fist, and then a finger pointing to the third emoji, which was an ambulance."

"So the message the judge thought in that case was pretty clear: I'm going to punch you out so badly that you're going to end up in the hospital."

But there are many examples that leave courtrooms scratching their heads, she says.

"Often the message that is being conveyed is more complicated. It is more complex, it's more ambiguous, and that is both on the part of the sender and on the part of the recipient."

She says judges should be turning to experts to decipher them.

"We've got linguists, people who study semiotics, people to look at human-computer interactions, the law."

But Goldkind says the more experts you have in court, the more you take away from the judge and jury's exercise of common sense.

"I am very uncomfortable with a 75-year-old expert in linguistic-emoji technology coming in and saying, 'Here's what the penis emoji meant when she said it.'"

"You're talking about something that's used by younger people to convey emotions. You can't go back and ask somebody who's out of touch with that."

'Aren't necessarily intuitive'

Emojis do involve a level of ambiguity, according to Gretchen McCulloch, a linguist and co-host of the podcast Lingthusiasm​.

(Instagram / Emojipedia)

"There are definitely some emojis that have a seemingly obvious meaning," she says, like the winky face. "But there also are a bunch that have meanings that aren't necessarily intuitive." She uses the eggplant emoji, often used as a phallic symbol, as an example.

"There are lots of stories of people's parents at grocery stores texting them the eggplant emoji, and the millennial kid having to say, 'Look Mom, look Dad, that's not an eggplant. That's used suggestively these days."

Adding to the confusion is that emojis can be displayed differently depending on the device.

For example, the maple leaf emoji can be used to represent Canada or marijuana.

The maple leaf emoji as it appears on different devices. Some say the one on the right looks like a marijuana leaf. (Emojipedia)

The image, which is based off the Japanese maple leaf, bears a resemblance to a marijuana leaf, McCulloch says. So what looks like a Canadian maple leaf on one device, might look like a marijuana-like leaf on another. 

But McCulloch says she doesn't think this is a matter of the courts learning a new "language" of emojis. She likens them to gestures, which the courts have already grappled with deciphering.

"There's a gun hand shape that you can make with your hands, and it can have meanings from, 'I'm bored. Get me out of here' to 'I'm threatening you.'"

"That's something the courts have had to deal with on the gesture side before," she says. "I think that's a good framework for thinking about how we interpret emojis."

Listen to the full conversation at the top of this page, where you can also share this article across email, Facebook, Twitter and other platforms.

This segment was produced by The Current's Alison Masemann, Winnipeg Network Producer Suzanne Dufresne and Halifax Network Producer Mary-Catherine McIntosh.