Emojis on Trial in Silk Road Drug Site Case

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 2, 2015

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Happy Sad Emoji FaceAs the New York Times reports, the trial of Ross W. Ulbricht recently began in federal district court in Manhattan. Ulbricht is charged with running a website called Silk Road where vendors could sell drugs and other illegal merchandise anonymously. Transactions were conducted using Bitcoins. Ulbricht allegedly earned $18 million-worth of commissions in this currency.

Ulbricht allegedly used the nom-de-Net “Dread Pirate Roberts,” from The Princess Bride. His lawyer denies that he used that online name but does admit that the Silk Road website was Ulbricht’s idea. The lawyer said that his client handed off management of the site to others after a few months, but that he was later lured back and became the “fall guy” for others.

Ulbricht is charged with narcotics trafficking, computer hacking, money laundering, and soliciting the murders of six people, including one who threatened to expose the real names and addresses of Silk Road vendors and customers unless he was paid half a million dollars.

It does not appear that anyone was actually killed or even hurt.

Ulbricht’s supporters, some of them masked, picketed the courthouse as the trial began, calling his alleged crimes victimless.

Just as the trial was getting started, Ulbricht’s lawyer objected that a critical piece of evidence had been omitted by federal prosecutors: an emoji used in one of Ulbricht’s Internet postings.


Most people have used emojis (also called emoticons), even if they don’t know what they’re called. The Japanese term literally means “picture character.”

The most famous emoji is the one created by typing a colon followed by a parentheses to form the iconic smiley face.

Typefaces and apps now allow for a seemingly infinite range of emotions and interests to be expressed using emojis.

The emoji issue in the Ulbricht trial arose when a federal prosecutor read to the jury the text of an Internet post by the defendant: “I’m so excited and anxious for our future, I could burst.”

The prosecutor failed to mention to the jury the smiley face emoji that followed.

Ulbricht’s lawyer objected and the judge instructed the jury that it should take into account the use of emojis in the defendant’s messages.

As the Times noted in an article last year, this isn’t the first time a jury has been asked to consider emojis when evaluating a defendant’s intent.

In a case now before the US Supreme Court, as we discussed here, Anthony Elonis was prosecuted for making Facebook threats against his estranged wife in the form of rap lyrics. However, one of his seemingly-threatening posts ended with an emoji of a face with the tongue sticking out.

According to some sources, that emoji can mean “kidding, not serious,” and that’s what the defendant said he intended. According to other sources, however, it can indicate disrespect.

In the Elonis case, the lower courts found that the defendant’s intent in using the emoticon didn’t matter. What mattered was how a “reasonable person” would interpret his communications, emojis and all.

If you’ve been charged with a crime…

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