A recent article in the New York Times about the Silk Road prosecution – which has since resulted in a rather speedy guilty verdict on all counts – raised interesting questions about the presentation of internet evidence. The case involves allegations that the defendant, Mr. Ulbricht,  set up and ran a black drug market on a secret, black part of the internet, the so called Tor network. The prosecution is seeking to introduce chat evidence of messages sent by the defendant. Some of the messages involve not simply words but also emoticons.

The prosecutor contended that these messages should be presented orally to the jury – the messages would be read and a notation made whenever an emoticon appeared, that is “emoticon.” The defense contended that they were not intended to be oral communications and should be submitted in writing to the jury. The judge agreed with the defense.

Interestingly, a case is currently pending in the Supreme Court that raises the question of the admissibility of a threat communicated with a face with a tongue sticking out; the defendant apparently claimed the emoticon showed he was joking.

Related Readings:

• Benjamin Weiser, At Silk Road Trial, Lawyers Fight to Include Evidence They Call Vital: Emoji, The New York Times (Jan. 28, 2015).
• Amy Howe, Court Difficult to Read on Facebook Threats: In Plain English, SCOTUSBlog (Dec. 1, 2014).
• Elonis v. United States, No. 13-983, ____ U.S. ____ (Argued on Dec. 1, 2014).
• Elonis v. United States, 730 F.3d 321 (3d Cir. 2013) (affirming the indictment and holding that there was sufficient evidence to show that the defendant’s website post regarding explosiveness was a “true threat;” and that defendant’s website post expressed intent to use explosiveness against agents, and was a “true threat”).