Should Emojis Be Used as Evidence in Court?

Last week, The New York Times reported on the trial of accused online black-market operator Ross W. Ulbricht. Adding to the fanfare of the trial is an unusual debate over the admissibility of emojis supposedly sent by the defendant.  The debate has drawn interest from journalists, legal scholars, and the public alike and is one of a number of new technologies being debated in the courtroom.

Created and first used in Japan, emojis literally means “pictures” and can be used to communicate a variety of emotions. Tyler Schoebelen, a Stanford trained linguist who has written scholarly works on the meaning of emoticons, writes in the article:

"If it’s a ‘winkie,’ there’s flirtatiousness or a sort of a fun to it,” Mr. Schnoebelen said. “With smiles, there might be a politeness or a friendliness. If there’s a ‘frowny’ face, it’s indicating you don’t like what’s happening."

Although the emoji or emoticon’s admissibility may be helpful in conveying to a jury the meaning behind certain communications, they can also cause confusion.  A current case is pending before the US Supreme Court, where a man was convicted of making threats to murder his wife, but which he claimed were made in “jest” by use of a face with a tongue sticking out.

UPDATE: On February, 4, 2015, Ross W. Ulbricht was convicted on all seven charges in a Manhattan district court. His sentencing is scheduled for 15 May, although his defense attorney, Joshua Dratel, has promised to appeal today’s verdict.

When Fitbit Data Is Called As A Witness In Your Injury Case

Last week, The Atlantic and Forbes, both reported on first use of Fitbit (or wearable technology’s) use in the courtroom. According to the articles, the personal injury suit involves an injured personal trainer who is using Fitbit to support her testimony about her reduced levels of activity following an injury. Her Fitbit data is analyzed by Vivametrica and measured against activity data from the general population. Although the case is occurring in Canada, it signals the increasing interest from both personal injury lawyers and insurance defense lawyers on the use of this data.

One can imagine the scenario where an individual has used the Fitbit months before a major injury and thus continued to use it following the accident. The data, if collected accurately, may illustrate the change in activity levels. This evidence could prove helpful to a jury in evaluating the impact an injury has on a plaintiff, one of the most difficult areas of a case to prove.

While this is reportedly the first use of Fitbit data in the courtroom, the use of data from social fitness sites has been used before. In 2012, the performance tracking site Strava came under scrutiny following a fatal collision between a cyclist using Strava and 71-year old Sutchi Huia crossing the street with his wife in New York City. Strava also came under attack in a personal injury suit brought by the estate of the cyclist fatally injured while attempting to set a new record on the performance tracking site. The use of performance tracking data from wearable devices will be seen more frequently as consumer demand and improvement in tracking technology occurs.