The Law and Fiction blog is back up and running — I hope! To test that theory, I’m sharing a piece I heard on NPR yesterday that may sound like it came from The Onion, but I promise you, this is real stuff. Next Witness: Will the Yellow Smile Face Take the Stand? http://www.npr.org/2015/02/08/384662409/your-honor-id-like-to-call-the-smiley-face-to-the-stand
The piece mentions concerns over how to interpret an emoticon, and suggests that the author of the text or email be asked to state what he meant by the emoticon. Some texts or emails might come in to evidence through the recipient — like letters received, they would be admissible under an exception to the hearsay rule — but the recipient can only testify about what she understood the emoticon to mean, not what the writer meant, which would be speculation and hearsay.