Emoticons as evidence?

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.

Online searches as evidence in a criminal case

I noticed an interesting ruling in the recent case of a Seattle lawyer who pleaded* guilty to five counts of rape and one count of burglary, for his attacks on several women, most of them Asian female massage therapists. According to the Seattle Times, the trial judge ruled that evidence of the defendant’s online searches for “rape scenes” would be admissible at trial.

No worries for writers who sometimes worry about their search history—law enforcement didn’t track him on line, but arrested him after victims reported the rapes, which then resulted in more reports of similar incidents. Law enforcement officers seized his computer and discovered the evidence of his searches for incidents similar to those he was charged. I have not read the ruling—not available on line, as we discussed last month in my post about electronic court filing—but I suspect the primary issue was whether the evidence was “probative.” That is, did it make a fact at issue in the case more or less likely? No doubt the prosecutors and  defense counsel debated whether the act of searching shed any light on his guilt or innocence. As the judge might have said, objections go to weight, not admissibility.

Judge Mary Yu excluded testimony about the defendant’s attraction to Asian women and  allegations he sexually harassed co-workers. Again, I suspect that the evidence was not probative—it may be bad, but any connection to the rape allegations is too remote and speculative. A white man’s attraction to Asian women hardly indicates whether he is or isn’t a rapist. The sexual harassment allegations could be connected, depending on what they involved—innuendo or suggestive comments, on the one hand, or forceful touching or demands for sex as a condition of employment, what the law calls quid pro quo allegations, on the other. Obviously, a judge has to draw the line carefully to prevent inappropriate implications that committing one type of wrong act proves a defendant committed another and avoiding the risk of taint, while allowing the jury to see the full picture.

How might searches of your fictional suspect’s computer—by law enforcement or your amateur sleuth—uncover evidence and lead to a fight over admissibility? 

Garner* Doesn’t sound right to me, either, but Garner says it’s so, in Garner’s Modern American Usage.

A Perry Mason question — objections

A reader says of Perry Mason, “He’ll occasionally object that certain testimony is “incompetent, irrelevant, and immaterial.” The last two words I have no problem with, but in that context, what does “incompetent” mean? It obviously doesn’t mean the
same thing as it does when I say that so-and-so is incompetent. :)”

Generally, it means that the witness has no basis to know what he claims to know. As if I testified about astrophysics or whether Oswald acted alone. It’s an old-fashioned term; these days, most lawyers would say “objection: foundation.”