As lawyers (or aspiring lawyers) we pride ourselves on our ability to interpret language or the intended meaning behind various assertions. Let’s put this skill to a little test. Consider the following two text messages from John: 1) “I don’t know if Bubba will be able to make it to the a golf course today… apparently his back is still hurting,” and 2) “I don’t know if Bubba will be able to make it to the golf course today… apparently his back is still hurting ;-).”
Now let’s add a little context. Assume you are a defense attorney disputing Bubba’s claim for damages sustained in a car accident. You obtained this text message through discovery and your theory of the case is that Bubba is faking his injuries.
The meaning of text number one seems rather obvious, but what about text number two? Has the use of the emoticon changed the effect of the proposition that precedes it? If you answered “yes,” then you must have concluded that the winking emoticon has independently made its own assertion – Bubba’s back is not really injured.
At first glance, this distinction may appear rather inconsequential; however, when it comes to the admissibility of the evidence, this semi-colon and closed parenthesis could make a world of difference. Allow me to explain.
The world of electronic communication (e.g., text messages, Twitter, and Facebook) has dramatically changed the way we express and communicate ideas. Indeed, this reality implicates a multitude of evidentiary issues for judges and lawyers alike, including, but not limited to, the best-evidence rule, authentication, hearsay, and privilege. This article, in its limited scope, focuses specifically on how courts might analyze emoticons under the enigma that is our hearsay doctrine.
In its most basic definition, hearsay is “an out-of-court statement offered to prove the truth of the matter asserted.” Hearsay is inadmissible; however, like any blanket rule, there always seems to be an exception, and the Federal Rules of Evidence (FRE) enumerates roughly thirty of them. But, as Campbell Law Professor Woody Woodruff often implores, “Before determining whether a statement falls into a hearsay exception, you must first determine whether it is hearsay at all.” With emoticons, this determination is not only where the hearsay analysis must begin, but also where it likely will end.
The fundamental question that one must answer is, “is an emoticon a statement?” FRE 801(a) defines a statement as, “(1) an oral or written assertion, or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” Thus, the term “statement” includes not only verbal expressions, but also nonverbal expressive and communicative behavior when it amounts to a substitute for words.
For instance, if someone asks, “Did you get the job?” and I write or say, “Yes,” then this clearly falls into the first category and qualifies as a statement under the hearsay doctrine. If I am asked the same question, and I simply flash a “thumbs up,” this is nonverbal conduct intended to assert that I got the job – hearsay yet again.
Meuller and Kirkpatrick, authors of Evidence Practice Under the Rules, suggest that determining which category a statement falls into can be critical in determining which party bears the burden of persuasion. They contend, “Most verbal behavior intentionally expresses and communicates, so it should be treated as a ‘statement’ for purposes of the hearsay doctrine, and a party claiming the absence of the requisite intent should bear the burden of persuasion on this point.” However, “[Nonverbal conduct] might have assertive intent, so it might be a statement, in which case it would be hearsay if offered to prove whatever the actor sought to express. In this setting, the burden is on the objecting party to prove that the actor had the requisite intent.”
The conundrum presented by emoticons is that they do not fit neatly into either category under FRE 801(a); they are written verbal expressions representing nonverbal conduct. To date, research has failed to reveal any case law directly dealing with this issue. However, the one area where all commentators unanimously agree is that for a statement to qualify as an assertion it must be intended as such.
The fact is, almost everything we say or do has some assertive element. For example, if I were to say, “Did Bubba drive his car to work?” Although this is an interrogative sentence, the antithesis of an assertion, it contains a number of propositions – that Bubba has a car, the car works, Bubba knows how to drive, and Bubba has a job. While all of these facts can be derived from my question, it is unlikely that I intended to assert any of them, and equally unlikely to be considered hearsay when offered to prove one of these indirect points. Thus, the critical inquiry lies in the declarant’s intent.
The inherent difficulty in deciphering a speaker’s intent is only exacerbated when the expression is in the form of an emoticon or an emotive acronym. Consider the following example, “My back really hurts lol!” If this statement was made in a face-to-face encounter, and the “lol” was actually the declarant laughing out loud, then the laughter would most likely be reflexive behavior interpreted as non-assertive, and thus not hearsay. However, when the declarant specifically types out “lol” it can hardly be argued that this action is reflexive and not intended to express or communicate an idea.
The same is true of a wink, frown, or smiley face emoticon. Written messages are inherently vague because you lose all that is communicated through body language and voice inflection. For the most part, we include emoticons to place otherwise vague statements into context, and if we did not think that they directly or indirectly asserted something, then why would we include it? Consider the following phrases, “I’m pregnant” and “I’m pregnant 🙁 ”; doesn’t the latter with the emoticon tell the reader a great deal more than the former?
Furthermore, emoticons implicate the same hearsay risk as other forms of out-of-court statements and are generally considered an inferior kind of proof. The most obvious danger in allowing emoticons to bypass the hearsay rule is the risk of faulty narration – the risk that the declarant might misspeak or be misunderstood. Commentators agree in citing three basic concerns. First, the speaker may say or express one thing, but mean another. Second, even if he uses words (or emoticons) well and chooses those appropriate to convey his intended meaning, he might still be misinterpreted. And third, language is imperfect and may not capture the point of detail that lies at the heart of a litigated dispute.
Indeed, language is rich in vocabulary and idiom, and verbal expressions can be complex, rhetorical, slangy, imprecise, figurative, and indirect. However, the hearsay doctrine must be applied to all forms of expression and out-of-court statements cannot be effectively edited to meet the needs of trials. Therefore, lawyers and judges alike must be adept at analyzing all forms of communication, especially forms that are increasingly grammatically imprecise.
So, is an emoticon hearsay? It seems that the only appropriate answer is, “it depends.” As with many items of evidence, there is no conclusive answer. Its admissibility will depend on all the facts and circumstances and, more importantly, your ability as an advocate to articulate a persuasive argument.
For your information, Bubba’s back doesn’t really hurt ;).