Can Emoticons Beat the Hearsay Rule?

As we’ve previously mentioned, our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  This very morning, his third submission was published at that site.  The topic: “Can Emoticons Beat the Hearsay Rule?” Yes, you read that correctly.  He is actually analyzing where those little smiley faces people append to the end of their texts or instant messages might be helpful in a hearsay inquiry. His conclusion: They actually might help (maybe, sometimes). Here’s an excerpt of the new post:

Carole Gailor of Raleigh, North Carolina recently spoke at a North Carolina Bar Association conference on the rules of evidence as applied to electronically generated information. In so doing, she remarked upon the authentication and admissibility hurdles that litigants must confront when attempting to introduce electronic or digital evidence, such as emails, computer generated reports, social media profiles, and other such information. However, she made a stray remark which prompted the law nerd in me to take particular notice. Ms. Gailor noted that an emoticon might, in fact, assist in the analysis of whether a digital piece of evidence is admissible.

As a preliminary matter, we could turn to Wikipedia or Urban Dictionary or the like to find a formal definition of the term “emoticon.” But that’s not really necessary, is it? But everyone knows that they are the little smiley or frowny faces – or sometimes far more complex textual graphics – utilized by writers on the Internet to convey all sorts of present emotions.

But why bother with a lay definition? A number of courts have already tackled the term.

Read the rest of the post here.


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