Federal Rules of Evidence, evidence, emoji


Emojis are 3,633 ubiquitous symbols-as-communication used by 92 percent of internet users. These tiny yet influential pieces of evidence hold the power to complete, enhance, mitigate, and flip the meaning of surrounding text. Consequently, court references to emojis have grown exponentially in the last five years. As emojis have become a cornerstone of digital discourse, courts have increasingly encountered the significant impact of emojis on parties’ legal claims. A guide for handling of emoji evidence under the Federal Rules of Evidence (FRE), therefore, is important to afford proper treatment to this relatively new evidentiary form.

This Note discusses how the FRE, in their current form, should apply to emojis as a commonplace form of symbols-as-communication. After analyzing expert testimony and the presentation of emoji evidence through the lenses of FRE 702, 701, 803(5), and 403, this Note argues that relevant emoji evidence should always be shown—not just read—to jurors on party request. Additionally, this Note argues that emojis cannot reasonably be ignored and that senders and recipients should always retain the opportunity to testify about their intended and understood emoji meanings. Finally, this Note advises courts to generally exclude third-party testimony on emojis’ meanings.

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