Emoji Law Part 2: The Digital Revolution of Evidence with Judge Carl A. Aveni

Join Reminger Co., LPA and the Columbus Bar Association for a collaborative podcast series on emoji law. Emojis (from the Japanese e, “picture,” and moji, “character”) are an increasingly important way that we express ourselves. It is estimated that 2.3 trillion mobile messages have an emoji or two.   

Though they can be cute and fun, emojis can also contribute to misinterpretations and misunderstandings. Disputes concerning emojis can arise in many different legal contexts and there are currently no court guidelines for how judges should handle or interpret them. 

We will discuss this burgeoning legal issue with various stakeholders including social media influencers and members of the bench and bar.

In our second episode, Kenton Steele (Associate, Reminger Co., LPA) interviews Judge Carl A. Aveni (Franklin County Court of Common Pleas). Judge Aveni reviews how the handling of evidence has changed in recent years. They review the topics below: 

• The move from hard copy to digitized documents in court 
• The evidentiary record of text message and social media communications 
• Emoji issues that have manifested in criminal cases 
• Is a “thumbs-up" emoji a binding contract? 
• Are emojis authentic and admissible?  

Transcript

KHS    Kenton H. Steele, Esq.

CAA    Judge Carl A. Aveni

KHS

Hello and thank you for joining us again in this series where we’ll be discussing the law related to emojis.  If you were able to join us in our prior episodes, we started out with a conversation with a social media influencer who talked to us about the way that emojis are used in every day conversation, the way people do business now on social media platforms and how emojis are used to communicate.  And with the roles that emojis are playing in every day communication, they are also gaining prevalence in legal disputes and today we’ll be picking up in that conversation with a very special guest who I’ll turn to, to introduce herself for our viewers and listeners here.

CAA

So, I’ve been on the bench since January 1, 202.1.  Before that, for 24 years, I was a civil trial lawyer here in Columbus.  I spent a couple years first on the east coast practicing in Philadelphia, came to Columbus in 1998 or thereabouts and practiced civil, primarily commercial and business litigation but with a practice in Plaintiff’s side catastrophic injury and wrongful death cases as well.

KHS

Alright, so that certainly gives you, I think a lot of background in a couple of different ways…

CAA

Right.

KHS

…where you can come at the issues that we’re talking about in this series.  But, in your current role as a judge, obviously one of the important things you handle is overseeing trials and a big part of that is ruling on the admissibility of evidence.  Do you have any sort of general guidelines or philosophies that impact your approach to making those decisions about things coming in or being kept out.

CAA

Sure.  I do.  It’s really, I think, more a process driven philosophy rather than a substantive legal philosophy.  I’ve been called, and I think it’s accurate to say, that I am a procedural formalist.  And so what that means is that I very much expect that when there are discovery disputes or evidentiary disputes on the eve of trial, we’re going to have those issues largely vetted by the time the trial starts.  Ideally, particularly in a civil setting, I don’t see any reason why there should be any surprises about the evidentiary outcomes of foreseeable issues at trial.  So, philosophically, I am a judge that would prefer those issues to be vetted by the Final Pretrial, fully briefed by the parties.  I will generally issue an opinion on these recognizing that whoever’s on the losing end of that issue may want to have that issue for an appeal and so I will make an extended record both in whatever the decision and entry is where possible or on the record in the courtroom, you know, as appropriate.

KHS

And, sort of continuing on that point about handling evidence in trials, I think something that most people, most viewers will be familiar with is changes in the forms of evidence.  Over the last few years, really over the last few decades, is that something you see coming up in trials?  The switch from, you know, hard copy paper documents to digitized communications, emails, things of that nature?

CAA

Yes, both in terms of internal operations of the court on the one hand and then also, you know, in the you know substantive areas of the law on the other.  So, you know, when I graduated law school in 1996, there was still a lot being done by typewriters, you know, and with photocopy machines and fax machines with the little digital spools that had the thermal paper on it.  And, you know, the digital revolution that we’ve all lived through in the last couple of decades has changed that mostly for the better, I think, but it has certainly added levels of complexity to what used to be fairly straightforward.  I mean, you know, if you are filing a motion as a lawyer in 1998, you were coming down to the courthouse to do it and you would drop off a courtesy copy of that motion and you’d probably say hello to the court staff and everyone knew each other because everyone saw each other on a regular basis.  And one of the things that electronic filing in particular has done, is it’s changed that dynamic entirely so that on my civil docket in particularly these days, as a guy that spent, you know, almost a quarter century practicing in that area, I rarely actually see the lawyers on my cases face to face on the civil side of things on motions practice because they’re filing it electronically, the memo contra is filed electronically.  It all comes to me digitally.  Sometimes it gets sent to my iPad and I’m not taking it home in a briefcase.  I’m looking at it, you know, from the cloud you know at home at night.  And so, there are upsides to that.  There’s a lot of positives that go with that sort of technological innovation.  But, there’s some downsides that go with it as well.  In particularly in the sense that there’s, there’s been an estrangement to some extent between the bench and the bar just because it’s harder to get together in one place, prior to trial.

KHS

And, I think that is a phenomenon that is not exclusive to the legal profession, right, is the distancing, the loss of that facetime.  And what it’s been replaced by, in large part, especially I think with younger generations, is the use of social media, right.  That’s how people interact instead of meeting up with your friends to go to the mall…

CAA

Texting each other.  Sure.

KHS

…yeah, you text each other.  You exchange DMs or you know, on Instagram or SnapChat, that’s the way that you’re getting that sort of intermittent communication with each other.

CAA

As the father of teenagers, I can assure you that they don’t get together face to face or when they are face to face, they’re both looking down at their screens sending each other messages rather than interacting in the way that, you know, earlier generations would.  And, you’re right, I mean that has had a, that has had a watershed sea change in how cases get tried both procedurally but also in the substance of, you know, the types of evidence that get introduced in a trial.  The way that, the way that disputes arise is as a function of technology and gaps in technology and the ways that those disputes subsequently get resolved as well.

KHS

And, and with that increase in use of the social media platforms, you know, on the one hand you have digitized communications with emails.  When you have some type of commercial dispute come up, it’s pretty clear who that email belongs to, who authored that email.  Now, with social media, it’s a little bit different, right.  Anyone can go open a Facebook page with someone else’s name or a Twitter that doesn’t even necessarily have a name attached to it.  Have you seen those types of issues arise or disputes about authenticity of things from social media platforms.

CAA

So, we’re dealing with this a lot actually right now down at the courthouse.  Not on the civil side of it but really on the criminal side of it.  So, in my court, one of the areas that, well, I was duty judge just very recently and one of the responsibilities of the judge that’s serving as the duty judge for a given time period is they sign all the search warrants and the number of search warrants that are tied to emergent technologies, you know, they really overshadow what you think of in your head as sort of the traditional types of search warrants that get issued.  So we had, and continue to have, search warrants for social media platforms.  We have search warrants for pings on cell phones because with, you know, it’s not simply that we have access to social media all the time in our pockets, we have effectively a typewriter and a full size camera and a video camera and a phone in our, and a bullhorn, in our pockets every day as we go around carrying our phones with us.  And the way we use them is so ad hoc and informal and people aren’t necessarily thinking that they are establishing an evidentiary record as they move through the world digitally, you know, sending messages along the way but they are.  And, in the context of a criminal case, that’s certainly a great many cases these days involve things like social media checks to see whether the perpetrator and victim putatively of a crime were in contact.  Whether they knew each other in one or another.  Were they corresponding on Facebook?  Did they know each other?  Was it a Craig’s List transaction that was at the beginning of this process or what and then also you will see lots of potential evidence, not all of it admissible, but lots of potential evidence about the circumstances surrounding, you know, a defendant’s mental state on social media.  And that’s also, that applies in the civil law as well, you know.  If you think about, for example, a car accident case and the plaintiff in the car accident case is claiming a series of types of injuries over time and describing the effect that has had on their life, a lot of the supporting evidence for that and frankly also a lot of the evidence that would be used in a cross examination of that, to poke holes in it, is going to be found on a social media page.  You know, it’s one thing to say that you’re suffering, it’s another thing entirely to have page after page on your Facebook page showing that.  Or, conversely, showing you having a wonderful time at Kings Island and standing in the hot sun and waiting your turn on the roller coaster or what have you.  So, for better and for worse on both sides of the case caption, you really are seeing social media in particular and the ubiquity of the technology that supports social media so cameras in pockets.  You know, 30 years ago people didn’t carry cameras with them wherever they went.  Now they do.  And I can tell you that since getting an iPhone 12 years ago or whatever it was, I have taken exponentially more photographs that are still stored in the cloud through that technological platform than I did over the entirety of the rest of my life with film cameras.  And, I don’t think I’m unusual in that regard and I know that the evidentiary uses of that are varied and complicated and still evolving.

KHS

Absolutely.  And, photographs are obviously a huge component of communication on-line.  I, you know, recall sort of the early days of the Internet where everything was text base.

CAA

Right.

KHS

Right.  If there was a photograph on a webpage, it meant you were going to wait for that page to load.  Primarily things happened over text and now we’re sort of seeing a shift where in addition to the text communication, in addition to the photographs, people are using a lot of emojis to communicate.  Is that something that you see coming up in cases where sort of shorthand or emojis are part of the communications that are at issue in cases.

CAA

Very much so and maybe because I’ve been in office, my time in office is really limited to the time that also co-equals the pandemic, I have seen it less in civil cases because especially during the initial phases of the pandemic, civil cases were held in abeyance while the criminal cases that had constitutional expectations of a speedy trial worked their way through.  So, because of the pandemic, we were handling a constricted volume of cases.  We were primarily handling criminal cases and as a result, we did see emoji issues.  We still see emoji issues arising specifically in the context of the criminal cases that have come to fruition.  My guess is that we’re not that long down the road before we start seeing the same problems and issues on the civil side.  But they certainly manifested in my experience first through criminal.  And one of the ways that they’ve come up again is it’s, it’s just really a testament to how people use social media all the time in an ubiquitous way, what I started seeing were cases where people were on bond or on probation so they’re not, it's not part of their trial in the adjudication of the offense in which they were indicted.  But, either before or after that and the terms and conditions of bond would require them to not commit a new offense and to you know, stay away from fire arms and the like and it is not as unusual as you might think to see folks posturing on social media for themselves and for, you know, other people in their peer group sometimes with a handgun in their waistband and some instances drugs, you know, present on their person or in the background and there’s a whole array of those types of cases that we have.  And the interesting piece about that is their posting it on social media and then they’re using emoji stickers to blot out or censor those parts of the picture that might get them in trouble.  So, there’s sort of a coy, wink and a nod thing that’s going on.  And that raises all sorts of really interesting questions because part of the image is obscured on the one hand and on the other hand, the mere fact that it’s being obscured at all in an intentional way also says something about mens rea scienter, you know, intentionality.  And so it’s really a double edge sword.  On the one hand it’s blocking some aspects of what’s being presented but on the other hand if it doesn’t completely obscure what it is, it also shows the extent to which someone is demonstrating some intent that they’re not supposed to be doing exactly what it is that they’re doing.

KHS

And one of the topics that’s come up in our other conversations on the issue of emojis is sort of the ambiguity that lends itself to the use of really pictographs to communicate.

CAA

Right.

KHS

Is there any, you know, advice or experience you’ve had in dealing with resolving those ambiguities.  What does this particular emoji mean, you know, in this context.  How do those questions come up?  How do they get resolved?

CAA

Well, so I have not had it come up yet, although I expect it will in a civil case, it’s easy to imagine how it could come up in a civil case.  So, without all the riggers of a contact, for example, it’s not hard to imagine someone sending an email that says if you do this for me, then I will do that for you in one sort or another, some sort of a contract.  And if the person responds with a thumbs up emoji, is that a binding contract?  Is it, you know, that’s really got to depend on the facts and circumstances and even putting aside the questions of authenticity, you know, you’re right that there are lots of ways that people have found themselves victims of phishing and spoofing on-line and so you may not be contracting with, it turns out there’s Nigerian princes that have all that money that they want to give, may or my not actually be as represented and, you know, there are a series of questions and concerns that the lawyers should be raising to the Court about 1) authenticity; 2) about admissibility; and 3) about content.  That third one really is more the province of a jury than a judge to make a final factual determination about whether that reflects an ascent for example to a contract or not.  But those gatekeeping functions of the court remain as they always have been which is to say is this authentic and is it admissible.

KHS

Absolutely.  And there are so many different ways in which that ambiguity can arise.  There are, you know, one of the other examples we’ve talked about is in the IOS emoji catalog there used to be a handgun that was removed at some point a few years ago and it was replaced by a squirt gun.  But everyone knows that that squirt gun is still the handgun emoji and how that can be used to potentially convey a threat in a way that could lead to a criminal sanction or cause a problem.  You’ve also got the way we’ve referred to it is, right, produce, fruits and vegetables have certain connotations in, when they’re used as emojis in communication that could be a form of harassment to someone, right.  It’s not as straightforward as it’s just a picture of fruit, right.  But there is, because of that ambiguity, right, it is, can be difficult to pin down those meanings and I think it is  a challenge for the legal community to figure out ways to explain look, this does have an establishd meaning.  This is what this statement was to address some of those evidentiary questions.

CAA

Right.

KHS

But, what is, you know, the reliable source to go to, to say this is the definition of this picture of whatever it may be.

CAA

And, and again, and sometimes it’s going to be a question of subjective intent and other times it’s going to be a question of what a reasonable person would infer and it really is going to depend on the type of case and what the standard is.  So, you’re right, I mean those issues are all very, very much in play.

KHS

And, you know, turning to kind of final thoughts here, is there any advice that you have for practitioners in general as to how to approach those things.  What, when questions arise about authenticity or content, which I understand, you’re absolutely right, it’s generally going to be more of a factual determination, right, if there is a dispute over what does this or that emoji mean.  But, it can also play in to the evidentiary issues.  Whether or not a given hearsay exception applies.  May depend on what the intended content was.  In approaching the bench to address and explain those things, are there any things that you would recommend or considerations that you think that the bar should be aware of.

CAA

Absolutely.  So, to the extent that, is to embrace the notion of procedural formalism as I do, you would want to separate the questions in your mind between on the one hand authenticity which is a fairly low threshold under Ohio law and then admissibility which is a substantially higher threshold and then credibility which is ultimately more the province of the jury assuming that you don’t have 403(B) ______ issues.  As it relates to authenticity, it has not yet been my experience that authenticity has been much of a dispute.  In other words, most of the time you’re able to digitally forensically determine what the source of that message was.  Was it on the punitive sender’s cell phone or on their laptop or not.  And, if it’s not, then that’s going to lead you down one path and it is, then it’s going to lead you down another path.  Most of the time, I expect that the lawyers in my court, if they don’t have a good faith basis for disputing authenticity, they’re going to stipulate to the authenticity most of the time.  You know, it calls to mind, Justice Felix Frankfurter has a, had a wonderful quote that I really embrace and I encourage the bar to as well, that litigation is the pursuit of practical ends, not a game of chess.  And, he’s right about that or he was right about that.  And so if authenticity isn’t seriously in dispute, don’t dispute it.  Focus your fire on those issues that you, you know, realistically you’re going to be able to ground your case on one way or the other.  So, most of the time, I expect to see a stipulation of authenticity or if there isn’t a stipulation of authenticity, I would certainly expect to have that issue briefed well in advance and on an issue like that, I would hold an evidentiary hearing and make an evidentiary determination that then is supported by a written decision and entry.  And, I’ve done a few of those and my guess is you would expect, you could anticipate getting a ten page opinion out of me on an issue like that because I really do want the parties to know in advance what the trial is going to look like from the perspective of the contours of the evidence that is, that is a jump ball and what isn’t.  And, most of the time, rather than forcing someone unnecessarily to bring in a custodian of records to determine the authenticity or to submit evidence on the authenticity, I would expect the parties to stipulate.  And, if they’re not going to stipulate, we’re going to have talked about that in advance and I will have scheduled an evidentiary hearing solely on the question of authenticity and I’ll, I would do that far enough in advance if given the opportunity to give people, you know, a reliable outcome in a written decision and entry that they can appeal later on down the road if they’re unhappy about it.  So, that’s the authenticity piece of it and that’s not really, thus far, been where the action is.  The real action is on the admissibility.  You know, is it hearsay.  Is it, what is it, is it probative at all?  You know, if somebody sends you, you know, an ambiguous emoji, you know, how is that even relevant to the issues in the case?  Often times, that’s going to be, you know, an open question.  And so, you know, those kinds of issues, it would not shock me if five or, five years or ten years down the road, there are established standards, you know, set out in the case law on things like interpreting emojis.  There may well be emoji experts later on down the road that speak to those issues as well.  But, for right now, from a procedural standpoint, I want those issues in front of me well in advance of the trial so that we can, so that we can have a clear understanding of how the trial is going to go.  And, I, you know, I am one of those judges that will, I’m not terribly afraid of getting reversed on appeal, I am perfectly happy to write out all of my thoughts on why a piece of evidence is being admitted or rejected so that later on down the road someone can have, you know, their right to a resort of a higher court to determine whether I was right in the first place.  I think that’s a fundamental part of the fairness built into the system and I embrace that fully.  And then there’s the last piece of it which is if it has gotten over the authenticity hurdle and it’s gotten over the much higher admissibility hurdle, then the question is what meaning to you ascribe to it.  And, again, that is mostly a function for the finder of fact accept to the extent that it goes to a relevancy challenge which is a core gate keeping function of the court.  So, you know, the court has some roll to play in the meaning, the ascribing a meaning to this because if the meaning is different, then you know, then a meaning that would be relevant to the case it’s not coming in.  On the other hand, you know, once there has been some reasonable expectation that it could mean those things that would be, you know, if true and believed, if found to be credible, it would be relevant for the issues in the dispute.  The, at that point, it’s really for the jury to decide.

KHS

Alright.  Well, your Honor, I thank you so much for joining us.

CAA

It’s been my pleasure.

KHS

This is certainly going to be very helpful to our viewers.  I think that these types of emerging issues are a thing to stay abreast of.  You, I would hate to be in the position where the first time I thought about figuring out what an emoji meant would be when I have it in a case, right.  It is good to make yourself aware of these issues.  How they can play out in advance, right.

CAA

We’re only going to see more and more of it over time as emojis have become a more regular fixture and generationally certainly my kids use emojis with greater regularity than I do and I suspect that you do.  And, you know, as those younger generations use that as an ordinary part of discourse, it’s just going to be a regular part of the law that reflects that.

KHS

Absolutely.  Absolutely.  Well, thank you all for joining us.  We hope you continue to tune in and continue to follow along with the rest of our discussion as we continue to explore the issues related to emojis and how they impact the law.