Legal News

Emoticons on Trial at the Nebraska Supreme Court

By Dionne Searcey

Can emoticons amount to illegal entrapment? The Nebraska Supreme Court is mulling the question about those little smiley faces created by various punctuation that teenagers — and some Law Bloggers — use in text messages and emails. :)

The case outlined in this Lincoln Journal-Star story involves a 31-year-old, James Pischel, who was sent to prison for using his computer to entice a 15-year-old girl who turned out to be a police investigator. Click here for an earlier story on Pischel’s sentencing.

According to the story, Pischel’s attorney, Matt Graff of the Lancaster County Public Defender’s office, argued the state investigator played on Pischel’s emotions and continued to chat with him after Pischel said she was too young to pursue two months earlier.

When Pischel said he wouldn’t meet, the investigator sent an angry face emoticon similar to this: >:(

When Pischel tried to end the chat without contacting the “girl” again, the investigator blew him a “kiss,” akin to this: :-{}

Graff argued Pischel, a former state corrections officer, should have a new trial because the jury wasn’t allowed to be given an instruction on the entrapment defense. But George Love of the Nebraska Attorney General’s Office countered that if an emoticon amounts to government inducement then an exclamation point must be, too.

“‘Cause that’s what an emoticon is. It’s a form of punctuation,” Love said, according to the story.

Love said Pischel admitted at trial he initiated the conversation, kept the conversation going, made sexual overtures and went to a park to meet the girl, who turned out to actually be Lincoln police investigator Ed Sexton. :(

Speaking of entrapment, we were reminded of the concept today when we stumbled upon a NYT obituary of Raymond Lederer, one of the congressmen brought down in the Abscam sting back in 1979-80. Some argued that the techniques used by the FBI during Abscam amounted to entrapment, but those arguments never stuck.

Emoticon photo: Wikimedia Commons
Lederer photo: AP

Full post as published by Law Blog - WSJ.com on December 04, 2008 (boomark / email).