Cutting-Edge Electronic Evidence Issues

Wordless communications, such as emoticons, emojis, GIFs, memes and the like, have evolved into the mainstream in social networking and other electronic communication. As a result, they have become more prevalent in evidentiary law, and cases are citing them more often. It all began with the “emoticon,” a combination of typed keyboard characters used to represent a stylized face meant to convey the writer’s tone. Emoticons have been around as long as typewriters, and may even go back as far as 1862: A transcript of a speech by President Abraham Lincoln, published in an issue of the New York Times, includes what some say is a winking face emoticon.

Emojis

Emojis are not only the likes, loves, care, and angry symbols to show how one feels about a statement on social media, they can also be cartoons or animated images that may represent feelings, emotions or expressions or serve as a replacement for words themselves. All these different emoji expressions may be joined into a single communication, often combined with words, internet memes or GIFs that, from an evidentiary perspective, may have to be broken down into individual meanings to support a singular combined communication.

Emojis are much easier to manipulate and create than emoticons, and some are built into standard email providers, such as Outlook. These responses are also readily available in response to or as a comment on all manner of social media electronic communication. The physical act of typing an emoticon under most applications will convert the typed emoticon to the animated emoji. For example, by typing ;) we get 😉.

One of the evidentiary challenges that comes with emojis is that they often have different meanings to different people. The recipient of an emoji may receive it with a different meaning than intended by the sender; the intent of the sender of actual text/words tends to be much easier to unravel. Words are there for everyone to see and understand. The only real excuse is to claim the sender was kidding or didn’t really mean what they wrote—an excuse that is also often used to explain away offending emojis. There isn’t a lot of additional circumstantial information needed to explain the meaning of specific words. On the other hand, if the sender sends a series of emojis, the meaning may be open to interpretation depending on the recipient’s familiarity with this non-verbal form of communication.

Finally, the defense we see most often is that the emoji was sent in jest. Thus, we see the myriad challenges related to translating electronic communications into their true, intended meanings for evidentiary purposes.

Emojis can stand alone or be combined to mean other things. Keep in mind that attorneys are required to stay up to date on current technology. Even if you think it’s silly or offensive to your personal beliefs, if your law practice deals with evidence of electronic communications, emojis are likely a part of it.

Many U.S. cases have directly held that emojis or emoticons themselves are statements that could fall under the hearsay rules. For example, courts have held that the smiley face emoticon at the end of a text message suggests amusement by “yet another opportunity to harass”; that a text message with an emoji face with “X”s for eyes alongside the victim’s nickname, combined with other communications “was irreconcilable with an accidental shooting”; that the tongue-sticking-out emoji meant sarcasm, so the defendant’s responses in an online forum thread that a public official was performing nefarious acts “cannot be taken as asserting fact,” so they were not defamatory; and that “likes” by a victim of sexually suggestive posts were hearsay.

Another case argued to the U.S. Supreme Court that the tongue-sticking-out-emoticon indicated “jest.” Yet other cases argued that emojis showed consent; that a winky face emoticon in a text message showed consent to sex; or that sending emojis of a fist, a hand pointing and an ambulance over Facebook could be the basis for criminal charges for assault.

Other countries’ legal systems have also relied on emojis and emoticons as statements, so don’t be limited by your jurisdictional case law when coming up with creative arguments to admit or deny the admission of wordless communications. For example, a French citizen was fined and jailed after sending his ex a gun emoji, which was found by the court to be a threat. In an Israeli real estate case, a smiley face, a bottle of champagne, dancing figures and more—although not a binding contract—led to the plaintiff ’s belief in the defendants’ desire to rent his apartment.

Specifically, the judge said that “the sent symbols ... convey great optimism” and that the message naturally led the landlord to rely on the defendants’ desire to rent his apartment. Another example of litigation via emoji resulted from a tweet made by an English government official; the court began with textual words and translated them into an emoji, instead of vice versa, finding that the words “innocent face” meant an innocent face emoji: 😇. Although the tweet did not include an emoji or emoticon, “innocent face” would be read on Twitter as such and so this made the text libel.

Under the definition of hearsay, a written or verbal expression or nonverbal conduct is a statement. Drawings have been held to be admissible under hearsay exceptions. A drawing by a child of the child’s frown or smile representing the child’s then-existing emotion was found admissible under Texas Rules of Evidence Rule 803(3) (same language as the federal rule). There is no reason why emoticons or emojis—computer images used to convey the writer’s tone, the actual thing the emoji depicts or a symbol representing something else—should not fall under the hearsay rules and therefore also be subject to exceptions and/or application of non-hearsay. When seeking to admit or object to evidence that contains emoticons, emojis or similar graphics, make your argument specific and reference the emoticons or emojis accordingly. Like all electronic evidence, don’t let authentication of emoticons/emojis intimidate you. Textual electronic communications with words such as emails, texts, posts, comments and messages are authenticated in a similar fashion as letters and other written communications, emojis and emoticons are, and using the same concepts. The distinctive characteristics contained in FRE 904(b)(4) (and many other state’s evidentiary rules) analysis becomes significantly important.

Cross-Platform Discrepancy

Another important and rarely utilized consideration regarding the evidentiary authentication of emojis is that all emojis are not the same across all platforms. Some emojis look one way when sent on an iPhone but appear different on an Android phone. Some emojis may completely change or reverse in transition from one platform to another; a finger pointing to the left on an Android phone may be a finger pointing to the right on an iPhone. This is commonly referred to as a cross-platform discrepancy and could totally change the meaning of the communication to the recipient versus what was intended by the sender.

Because of the potential of cross-platform discrepancy, the best but also most difficult and challenging tactic is to obtain both the sending and the receiving messages from the devices that sent and received them through discovery to show whether any discrepancies exist. This could raise an authentication problem because what was sent may not be the same as what was received, so the distinctive characteristics of the emoji/emoticon would not be the same.

GIFs

If, as it is often said, a picture is worth a thousand words, then a video is worth exponentially more. Graphics Interchange Format, or GIF (pronounced like the peanut butter brand), is an image file. It can be either a still image or, as discussed herein, animated images. CompuServe released the GIF format in 1987 and updated it in 1989. So, GIF is older than about 35% of the U.S. population, and it predates the World Wide Web by two years. It is still a large part of internet culture. In fact, the GIF format may be more popular now than ever before.

Because GIFs are essentially videos without sound, they can often be authenticated the same as pictures if they only contain a picture. A problem arises because these pictures likely depict a scene or person that the proponent has never before seen outside of that GIF or the source video from which the GIF is derived.

So, how do you authenticate a GIF? GIFs usually appear in or are attached to an email, text message or other type of communication, so they are authenticated the same way the communication in which the GIF appears is authenticated. However, the GIF itself may also contain words or emojis, or it may be a stand-alone communication. In those instances, each item within the GIF itself needs to be authenticated unless it falls within an admission, the Reply Letter Doctrine or some other evidentiary exception.

If that GIF is detrimental to your case, try objecting on technical grounds. Who created the GIF? How was it created? How does the Graphic Interchange Format decode these images? Chances are that because GIFs have been around for decades, expert testimony about the technical background will not be required, just like photographs do not require expert testimony about the underlying mechanics.

The reasons GIFs are used underscores why they do not require technical authentication—they simply convey a message or statement. For example, if someone is feeling surprised or excited, they may use a GIF of a character with an excited face. No other explanation is needed because the look of surprise says it all. Is that look of surprise making a statement that subjects it to the hearsay rules? Even if it were, would it fall within an exception? Creative arguments are essential and the best reason to read evidence cases, federal or state, from your jurisdiction or another. Just because you cannot directly cite to a case governing your jurisdiction does not mean you cannot make an argument supported by logic.

GIFs may also have writings within, which should more clearly fall under the hearsay rules. For example, if Party A asks Party B for permission to do something, Party B may send a GIF of a character with the words “Do it” superimposed over the images. The words “Do it” are hearsay, unless excepted from the hearsay rule because Party B is a party opponent and the permission to “Do it” is being used against Party B. Whether your GIFs have words, use the same evidentiary rules to admit them as any other statements. Authenticate the communication and show that the statements, including any GIFs, are either not hearsay or are excepted from the hearsay rule. Of course, you may also need to show that it is relevant and that its probative value outweighs any unfair prejudice.

Since GIFs are moving video-like images, there are two things to remember: First, when requesting discovery, be sure to request the native format because a printout of an animated GIF will not be animated. Second, if the communication you want contains an animated GIF, be sure to have the proper technology to show the animation contained in the GIF. Although one image from the GIF may be important enough to have a screenshot, just like a screenshot of a video, the entire GIF will require showing the sequenced images. And if the other side uses only a screenshot, Federal Evidence Rule 106 can help get the rest of the GIF admitted under the rule of option completeness.

Internet Memes

The term “meme” was first used in 1976 to refer to a unit of cultural information spread by imitation. Memes carry information, are replicated and are transmitted from one person to another, and they may evolve. Memes can be ideas, skills, behaviors, phrases, etc. The transmission of a meme occurs when one person copies a unit of information comprising a meme from another person.

Today, internet memes spread from person to person through imitation, typically by attachment or inclusion in emails, on social media and on various types of websites. They often take the form of pictures, videos or other media containing cultural information that has been deliberately altered by individuals. That deliberate alteration, however, violates the original concept of what a meme is, and, for that reason, internet memes are considered a different representation of the meme concept.

Most common internet memes are image macros—photos with a bold caption written in Impact font. The text is sometimes humorous or sarcastic. Memes can also be a video, a GIF, a saying, or pretty much anything that can be copied or slightly changed to go viral across the web. Although internet memes are not the same as the original meme concept, understanding the original concept helps one to understand how to use internet memes, which is essential to understanding the issues that come with questions of evidentiary admissibility.

First, you should understand the culture, idea, etc. of the content used in the meme, as this is what makes the meme more impactful to viewers and part of what explains the meaning of the meme itself. Remember the import of pointing out the meaning of the meme to the sender and to the recipient. The meaning of the communication may be essential to arguing its admissibility. For instance, when something intense and suspenseful is being discussed, someone may send or post a picture or GIF of the standoff scene from The Good, the Bad, and the Ugly, where the three men are staring back and forth at each other. If the viewer does not understand the reference to that scene in the movie, the meme does not make much sense, aside from people staring at each other with guns ready to be drawn. That scene has now been edited to include other viral images of children or animals partaking in the staring.

From a purely evidentiary perspective, memes should fall under the same authentication and hearsay rules as GIFs and emojis because they are used in websites, text messages, social networking posts, etc., and they convey a message, whether through the image itself, the image with words on it, the post, a comment, or another electronic communication to which is it attached or all of the above. If the meme is a stand-alone post on Facebook or something similar, it might still be authenticated by authenticating the website or other medium it was posted on. It would fall under the same hearsay rules, but its relevance or probative value may be in question.

This is where understanding the origin of the meme and its historical significance comes into play, just as the history of the GIF becomes significant—or if not the true origin, then knowing why the poster posted it. What did it mean to the poster or viewer? Had the poster ever posted or talked about something similar before? Is there a distinctive characteristic associated with the meme? Does the message that the meme conveys relate to anything going on in the case? These questions are all ripe for discovery requests or for questioning in a deposition or litigation. Because memes can, at the same time, seem innocent but have a deeper meaning based on their source, lawyers must stay on top of popular culture to best understand how to use memes.

Gaming/Forum Messages

Most online games allow the players to communicate with each other while playing by speaking to each other using microphones/headsets or through text/ chat logs. Live voice chats would not be retrievable unless the particular game was recorded, and even chat logs may be difficult to retrieve. However, some games carry chat logs forward from previous games. You may need to first ask the witness whether they play any online or multiplayer games and what they play, and then request any recorded games for the voice chats or chat logs. If the witness is unable to save the chat log, you may have to request screenshots of the chat logs.

You could try to subpoena the owner/ host of the online game, but chances are that the Stored Communications Act or similar laws may prevent you from getting very far. Some persons intentionally use gaming private messaging to have conversations they desire to hide. Lawyers often forget to ask for such messaging, along with other private messaging—as within Facebook and Twitter—in the discovery process. This type of request should be on your master list and included in your standard discovery inquiries.

Another way to get to the content is to ask a witness to bring their phone or computer/gaming device to the deposition once you know what multiplayer games they play. Then in the deposition ask the witness to open the game to access the content to show the evidence exists and should be produced later. Be careful not to seek to admit the contents of the phone, in the form of the phone itself. The phone would go into evidence and the owner would lose use of the phone until the case has been completed. Download information from the phone onto a different storage device.

If you can get your hands on any live chat recordings, those will need to be authenticated like any other voice recording. Chat logs can be authenticated like any other chat room content. Both may require you to overcome hearsay challenges. For any chats, voice or text that are not available, find out whether the evidence ever existed and then get into its contents. This could be anything from a technical support forum to Reddit. Other file-sharing sites, like Tumblr, allow for comments where users can interact. Tumblr and similar sites have been described as a cross between social media and blogging, so be sure to tailor your discovery requests accordingly. The “chats” through these types of forums can be admitted the same as similar chat logs or social media messages.

The Reply Letter Doctrine

If applicable in your jurisdiction, use the Reply Letter Doctrine for streamlined and easier admission of electronic communications. The original Reply Letter Doctrine states that a letter received in the due course of mail purportedly in answer to another letter is prima facie genuine and admissible without further proof of authenticity. A reply letter needs no further authentication because it is unlikely that anyone other than the purported writer would know and respond to the contents of the earlier letter addressed to him. Many jurisdictions have decided that the Reply Letter Doctrine also applies to electronic communications. If you are able to use this doctrine, it will significantly expedite the evidentiary admission process, and it’s a great way to admit a long string of electronic communications in one shot, rather than one by one, merely by proving a continuous back and forth between the parties along with the authentication hints above. A communication that contains an emoji or other wordless communication, such as a GIF or internet meme, may come in via the Reply Letter Doctrine without any further effort being necessary at authentication or other evidentiary challenges.

Adoptive Admissions

Another great tool of admissibility of wordless communications are adoptive admissions, which are non-hearsay, such as forwarded emails and other actions in forwarding or restating communications that indicate an adoption of the authenticity of the statement itself. The rule states that a statement that the party manifested an adoption or belief in its truth is not hearsay. Courts have incorporated emojis into this rule as well. The federal Fourth Circuit found that a thumbs up “like” was an adoptive admission and stated that “[L]iking a political candidate’s campaign page ... is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

The Master Cheat Sheet

Hints on authenticating the items discussed in this article

1. Identify the communication that contains the emoji, GIF, meme, message.
2. dentify the date/time of the communication.
3. Identify the sender and recipient of the communication.
   1. Use the sender’s/recipient’s cellphone number or email address as an identifier for text communications. Link the number to the contact list on the phone or in stored email addresses, if possible, which may also indicate nicknames (a distinctive characteristic under FRE 904(b)(4)).
   2. Use the sender’s/recipient’s Twitter or Facebook handle as an identifier for Twitter or Facebook communications (that contain the emoji, GIF, meme, message).
   3. Other communication mechanisms, such as other social networking accounts and gaming accounts, also provide handles as well as messaged conversations that can be used as the initial identifier in arguments over admissibility.
4. If applicable, establish that the communication method is typical or normal for the parties involved in the communication.
5. If necessary, authenticate each item of evidence within the single communication (emoticons, emojis, GIFs, memes, messages).
   1. Check for non-hearsay to determine if you can admit the communication with no further effort.
   2. If necessary to complete the authentication process, in addition to using the above identifiers to authenticate or challenge authentication of the communication (including emojis, GIFs, memes, messages), look for distinctive characteristics, such as nicknames, topics of conversation (that may only be known to the communicating parties), distinctive photos contained in the communications, distinctive accents that may show in written language and other distinctive characteristics per FRE 904(b)(4).
6. If available in your jurisdiction, after admission of the first communication, utilize the Reply Letter Doctrine to seek admission without further authentication of the continued stream of communications by establishing the back and forth.
7. Before giving up a challenge to the admissibility of evidence, remember that authentication is only a part of the admission process. If you are challenging admission, look for hearsay (without exceptions), relevance and other requirements for admissibility.