Federal courts have been debating about how much freedom users of smartphones and portable wireless devices in general, should have in a federal courthouse.
Some say they should be banned outright while others say they should be allowed in but their use curtailed. Unregulated use of smartphones has resulted in mistrials, exclusion of jurors and fines in some case. The problem isn't so much what the phones can do technology, but that users will link to social sites such as Twitter, Facebook or Linkedin or perhaps blog about an ongoing case.
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The Judicial Conference Committee on Court Administration and Case Management for the United States District Courts notes one case where Twitter became an issue. "In the Middle District of Georgia, in U.S. v. Shelnutt, the court denied a reporter's request to use an electronic handheld device to send messages from the courtroom to his newspaper's "Twitter" website regarding proceedings as they were occurring. The court held that: the contemporaneous transmission of electronic messages from the courtroom describing trial proceedings, and the dissemination of those messages in a manner such that they are widely and instantaneously accessible to the general public, falls within the definition of 'broadcasting' as used in [Federal] Rule [of Criminal Procedure]."
Although just what devices are allowed remains a matter for each federal court to decide on a courthouse-by-courthouse basis, the guidance offered by the Judicial Conference Committee can help courts develop or revise their respective policies.
"Whatever policy is adopted, there should be ample notice provided, including signs posted outside the courthouse and at the security posts, and the policy should be featured prominently on the court's website and in notices provided to attorneys and jurors," says the Judicial Conference Committee in a report issued this week. That report also offers the pros and cons of any rule-making.
Pros:
- It is estimated that there are 285 million cell phones in use in the United States today. It is very likely, therefore, that a number of individuals seeking to enter the courthouse will be carrying cell phones or some similar wireless portable communications device. The vast majority of the phones sold in the United States are equipped with picture, video and recording capabilities. The level of restrictions on entry and use of these devices may well determine the level of burden placed on the court security officers and the public's right of access to the courthouse. Updating and augmenting screening equipment, as has been done at airports, will assist in reducing these concerns, as will better and more frequent training of screening equipment operators.
- Many attorneys find that these portable communication devices are essential to their practice. Payphones are no longer readily available in most courthouses since they are no longer economically viable as a result of cell phone usage. Although courts are permitted to provide free local phone service, the number of such phones is usually limited and attorneys need a method of quickly communicating with their offices, their clients and witnesses. Some districts only allow attorneys and court employees to have phones.
- Electronic courtrooms are now common, and often attorneys must bring in laptop computers in order to present their case on electronic evidence display systems. Some districts require attorneys to have permission from the judge to bring laptops into the courthouse and the courtroom for the trial. The court will also likely need to consider how to address pro se requests to use electronic devices in the courtroom during trial.
- Some courts are located in buildings with other tenants, such as the Social Security Administration, and congressional or postal offices. Any policy adopted by a court will also impact citizens who are seeking access to the building for other types of business. This is a particularly important consideration in those facilities where court security officers are providing lobby entry screening for all tenant agencies.
- Stenotype wireless systems allow the court reporter to move about the courtroom and to attend a sidebar without being tethered to a wire.
- In some courts, judges use instant messaging to communicate with courtroom deputies and pretrial and probation officers who are using portable wireless devices such as BlackBerrys.
- Some accommodation may need to be made for the press to bring in laptops, cell phones, and other wireless devices when appropriate. Alternatives to this might include setting up a media room where the press could view the trial by audio-video feed and use their laptops and other devices from the media room.
Cons:
- Surreptitious filming, photographing, recording or transmitting of court proceedings outside of the courtroom in violation of prohibitions. This has happened in some state and federal courts, with photos being published in the newspaper, on the internet or on television.
- Taking pictures of jurors, witnesses, or undercover agents which may be used to intimidate or bring harm to these individuals.
- Disruption of court proceedings by noises emitted by these devices when someone is being contacted (even when the device is in silent mode) or by individuals responding to calls in the courtroom.
- Use of cell phones by jurors during deliberations.
- Use by jurors of wireless devices with internet access to research issues or even access court files during the course of a trial.
- Use of cell phones on standby status has produced interference with court recording and reporting systems.
Follow Michael Cooney on Twitter: nwwlayer8
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