Delarosa was convicted of murder. (Some background on the case). On appeal, he argues that the court should have excluded Facebook messages that indicated he had a gun weeks before the shooting. The Facebook message included some emojis:
The law enforcement investigator who testified described the emojis as “a smiley face emoji and a devil horn emoji.” Specifically, the printed Facebook message that was admitted into evidence shows a face emoji with tears of joy and a smiling face emoji with horns at the end of the message.
Notice that there are tears of joy on the face [😂] It has different meanings than regular smileys [there are many variations; this is the grinning face: 😀]Thus, the investigator’s testimony introduced avoidable ambiguity about emojis that was potentially misleading to the jury, I believe that the “devil’s horns” and “smiling face with horns” emoji are synonymous, but depicting the emoji visually would be a better way to explain them, For example, my software renders a smiling face with horns in red [😈]But often the depiction is purple. The appeals court does not address any potential problems with the investigator’s emoji testimony.
Delarosa’s motion to exclude the Facebook message included a printout of that message as an exhibit. However, in that printout,
Instead of being followed by two emojis, the message is followed by four closely-spaced rectangles. Neither the text of Delarosa’s in limine motion nor anything said during the in limine hearing would have informed the trial court that the four rectangles represented two emojis.
Delarosa argued that the emojis shown at trial would have led the jury to infer that he had a “contemplative attitude toward gun violence.” However, the appeals court says that at the time of the motion, the judge was not aware of the emojis (they were merely unexplained rectangular symbols in the evidence presented to the judge), so the judge could not evaluate the inference to which Delarosa now objects. Thus, the appeals court resolves the issue on technical grounds, holding that the trial court did not abuse its discretion in denying the motion because of the distorted evidence Delarosa presented in the motion.
I understand why criminal defendants should not get a retrial if they made mistakes in the first round, but I don’t like that outcome here. Effectively, Delarosa was made aware of the evidence (message with emoji) during the trial which was not subject to any motion in limine. In this case, the rectangles should have been a red flag that the printouts were not correct. One troubling possibility is that Delarosa’s lawyers should have found that the exhibit did not accurately reflect the evidence, but they did not.
[Note 1: it’s possibly unfair for an outsider ex post to critique how the litigation team handled a specific item of evidence. I imagine Delarosa’s defense team was dealing with a huge volume of evidence, possibly on short turnarounds, and litigation teams make many reasoned choices that are opaque to outsiders.
Note 2: it’s possible/probable that the trial outcomes would have been the same with or without the Facebook message evidence.]
The broader practice point is clear: lawyers should make reasonable efforts to ensure that emojis presented as evidence in court display the correct versions of the emojis. This is easier said than done, as an accurate portrayal may require viewing emoji in the contexts of both the sender and receiver and recreating the historical technological environment to reflect how the evidence looked at the relevant historical time.
The opinion sheds light on how emojis appeared in evidence, but disappointingly, the opinion did not feature any evidence showing emoji or rectangle substitution.
case citation, people vs harmon, 2025 cal. Application. Unpub. LEXIS 7318 (Cal. App. Ct. Nov. 18, 2025)