The issues with emojis go much deeper than this. Even if we agree on how exactly they displayed, their social meaning is highly dependent on the context of a conversation. Instead of allowing outside investigators to divine their own meanings and introduce them as evidence, courts should insist on testimony from the person or people those communications were meant for. If said people give wildly differing testimony to what investigators think is truthful, then they can go down the rabbit hole of how the codepoints were displayed and whatnot.
Google's "Messages" client on Android has a feature where, in RCS chats, if you send or receive a message that solely consists of a single applicable emoji (and I believe in response to certain emoji reacts as well?), a little animation plays. The :joy: and related emojis trigger a "haha so funny"-type animation, :cry: and similar trigger a sad, rainy cloud, and so on.
An interesting thing I noticed recently is that :skull: triggers the same "haha so funny" animation as :joy: does! Which kind of surprised me, because I was using the skull to convey "lol I'm dead", so it fit here, but I wouldn't think that's the primary use for it.
Because "lol I'm dead = something is hilarious = :joy:". "Emoji evidence" is crazy. :skull: can mean a million other things, same with a (water) pistol emoji.
One tricky aspect of this is if the messages are from the defendant then the defendant is almost certainly going to use their right not to testify (especially if they are actually guilty) as they'll be asked all sorts of other difficult questions they likely won't want to answer.
The state has been using this trick since forever. They don't even need to have written correspondance to misconstrue, they do it all the time with just testimony.
Theoretically this is probably where good jury selection comes in.
If a juror is presented a message with an explanation that is obviously “out of touch” with its intended meaning, the juror loses some trust and applies more scrutiny.
Exactly. For example, there's an enormous difference between someone saying "I'd like to choke that guy" in exasperation, and someone saying "I'd like to choke that guy" while discussing the weekend's plans with their friends. People say exaggerated things all the time and it's generally understood as not expressing their genuine intent.
Yeah, the novel bit here is only that the lógos displayed to the different parties can be materially different for technical reasons unrelated to the intent of either party. The rest is bog-standard ambiguity of language.
