Delarosa was convicted of murder. (Some background on the case). On appeal, he argues the court should have excluded a Facebook message that indicated he owned a gun a few 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.” More specifically, the printed Facebook message that was admitted into evidence shows a face-with-tears-of-joy emoji and a smiling-face-with-horns emoji at the end of the message.

Note that face with tears of joy [😂] has different meanings than a regular smiley [there are many variations; this is the grinning face: 😀]. Thus, the investigator’s testimony introduced avoidable ambiguity about the emojis that was potentially misleading to the jury. I believe the “devil horn” and “smiling face with horns” emojis are synonyms, but visually depicting the emojis would have been a better way to explain them. For example, my software renders the smiling face with horns as red [😈], but often the depiction is purple. The appeals court doesn’t address any possible problems with the investigator’s emoji testimony.

Delarosa’s motion in limine 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 could have prompted the jury to infer that he had a “glib attitude towards gun violence.” However, the appeals court says that at the time of the motion in limine, the judge didn’t know about the emojis (they were just the unexplained rectangle symbols in the evidence presented to the judge), so the judge couldn’t have evaluated the inference that Delarosa now objects to. Thus, the appeals court resolves this issue on technical grounds, saying the trial court didn’t abuse its discretion in denying the motion in limine due to the garbled evidence Delarosa presented in the motion.

I understand why criminal defendants shouldn’t get a trial do-over if they make mistakes in earlier rounds, but I didn’t love that outcome here. Effectively, Delarosa was exposed to evidence at trial (the message with the emojis) that hadn’t been subject to a motion in limine. In this case, the rectangles should have been a red flag that the printouts weren’t right. One troubling possibility is that Delarosa’s lawyers should have spotted that the exhibit didn’t accurately reflect the evidence, but didn’t.

[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 must undertake proper efforts to ensure that the emojis introduced as evidence in court display the correct versions of the emojis. That may be easier said than done, because accurate depictions may require seeing the emojis in both the sender’s and recipient’s contexts and recreating the historical technical environments to depict how the evidence looked at the relevant historical time.

This opinion turns on how the emojis appeared in evidence, but frustratingly the opinion didn’t display any of the evidence showing either the emojis or the rectangle replacements.

Case Citation: People v. Harmon, 2025 Cal. App. Unpub. LEXIS 7318 (Cal. App. Ct. Nov. 18, 2025)