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All is Fair in War: Watch What and Where You Speak

The saying “all is fair in love and war” came to mind when I read an article about some trial evidence a few days ago. The trial is of Mr. Ulbricht of California. He is charged with running an illegal online black-market bazaar. The federal prosecutor omitted a piece of evidence from an Internet message. That led to an objection by Ulbricht’s defense lawyer who said the piece of omitted evidence was very important. What was the evidence that he considered so vital? An emoji.

In case you’re not familiar with emojis or emoticons as they are sometimes called, they are little symbols that suggest emotions. In Ulbricht’s trial, the symbol was a smiley face. How could that be important to an understanding of the message that Ulbricht had sent? Because his sentence, without the emoticon, could have been construed as a serious admission of a fact tending to prove his guilt.

With the smiley face that he did place immediately behind the statement, it would be easy for the jury to believe that Ulbricht was merely teasing about what he said in the message. The federal judge presiding over the case in Manhattan decided the little emoji should be considered by the jury after all. In other words, what you say and write and draw does matter. It can be used against you or for you, so be careful what you say and where you say it. Your communications might end up in a court of law. In fact, it’s quite common.

I represent injured people. After suit is filed, the lawyers for insurance companies and the defendants I’ve sued almost always ask my clients if they use Facebook, Twitter, and other social media. If they do, the next questions will be what is your user name and what is your password? It’s hard to successfully object to the questions, because what they may have written about the facts of the accident and their injuries is certainly relevant to the case. Almost all is fair in the war of trials, so be careful to state the truth in messages, or, even better, be quiet.


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