Social Media and Electronic Devices in the Courtroom – A Clash of New and Old

Virtually everyone has an iPhone, iPad, Blackberry, or some other electronic device. Most, if not all, of these devices have the capability to snap photographs, upload messages, create a blog, and post a multitude of items on the World Wide Web.  Whether it is a statement on Twitter, a picture posted to Facebook or a simple text message or email to a friend or client, we live in a world where anything and everything can be part of the public domain in a matter of seconds.  With the advent of social networking sites and one’s ability to research people instantly on the internet, caution is needed when understanding the ramifications of these devices in the legal arena. While mobile devices provide great benefits to society, they can cause great harm in and out of the courtroom.  A recent gaffe by “Today” weatherman Al Roker, for instance, provides a good example how simple and easy it is to utilize the internet, potentially improperly.

It’s not every day that a famous TV personality is called for jury duty, but when one is, it tends to make headlines, especially when the pictures are of fellow jurors waiting to be called to the assembly room.  Mr. Roker reported for jury duty and posted several pictures of his fellow jurors and juror lounge, all in the name of promoting civic duty. The photographs were posted on Twitter along with several tweets.  The instructions provided to Mr. Roker and other jurors were that no photographs of the courtroom were allowed, but no particular reference to the jury waiting area was made.  While no court staffer allowed or even encouraged Mr. Roker to take photographs, no one explicitly prohibited this action either.  Needless to say, the chief jury clerk asked Mr. Roker to cease and desist.  However innocent Mr. Roker’s mistake, it highlights how the potential exists for the social media to impact the courtroom.

For the general public, cell phones have become an essential item to have on one’s person, similar to car keys, purses and wallets. In many cases, people have stopped wearing watches in lieu of pulling out their mobile device and obtaining everything from time, to weather, to headline news topics for the day. For many, smartphones are vital for conducting business, and this includes attorneys.  No longer is it always necessary to bring your files to court to work on while you wait for your matter to be heard. Now you can work on cases, send emails and communicate with opposing counsel at the touch of a finger. With this ever-increasing and fast-paced electronic environment, it’s hard not to reach for your phone any time there is a lull in court. Thus, signage and statements by court personnel do little to curb cell phone use.  The general public would rather take the risk of being embarrassed by an errant cellular ring or buzz than be burdened with turning off the phone.

In response, numerous states have tailored jury instructions to social media issues, including the ban of cell phones, while making the use of cell phones, computers or other mobile devices in the courtroom improper.  Use of these items can range from exclusion of a juror to the imposition of fines, and even mistrials.  Section 2.01, subsection 8, of the Missouri Approved Jury Instructions addresses social media issues as follows:

[Jurors may] not conduct any independent research or obtain any information of any type by reference to any person, textbooks, dictionaries, magazines, the use of the Internet, or any other means about any issues in this case or any witnesses, parties, lawyers, medical or scientific terminology, or evidence that is in any way involved in this trial. You are not permitted to communicate, use a cell phone, record, photograph, video, e-mail, blog, tweet, text, or post anything about this trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “Facebook,” “MySpace,” “Twitter,” or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case.  If any of you break these rules, it may result in a miscarriage of justice, and a new trial may be required.

As stated in the Committee Comments based on this 2010 Revision:

The trial court has considerable discretion regarding the use of cell phones or other electronic devices in the courthouse and during trial. Judicial discretion may be exercised by oral admonition, the addition of a paragraph regarding such devices at the end of MAI 2.01, or using a separate instruction. Other appropriate admonitions or directions to the jury may be formulated and given by the trial judge as determined in light of particular facts or circumstances of a given case.

How do you curtail electronic devices, cell phones, laptops and other technology from interfering in the judicial process? It would seem that simple signage prohibiting their use or instructions from the bailiff mandating that electronic devices be on silent isn’t enough.  The question, of course, is how do we balance people’s need for such devices with the need to ensure justice is served in the courtroom?  To that end, should cell phones and similar devices be banned outright, or should only judges and court personnel, perhaps even attorneys, be allowed to possess them?

Examining other jurisdictions, the Circuit Court of Cook County, which comprises the largest portion of Chicago, Illinois, for example, has enacted a recent court order banning all devices “capable of connecting to the internet” in the court room.[1]  Under this policy, all cell phones are banned, and only lawyers, judges and journalists are exempt, while the general public is subject to contempt of court should a violation occur. While this isn’t an absolute ban on cell phone use in courtrooms, it does severely restrict the use by criminal defendants, witnesses, parties to a lawsuit and most of the casual observers in the courtroom.  This would seem to be an effective policy to prevent cell phone abuse by jurors and others, but it has the potential to be seen as an unfair restriction on the non-professional citizens in the courtroom.  However, according to Cook County’s Chief Judge, “The order is being enacted to provide safety within the courts, prevent pictures being taken with electronic devices and help to protect innocent individuals and those testifying in court.”[2]

This new order was set to take effect on January 14, 2013 but has been delayed until April 15, 2013 to provide additional time for court administrators and sheriffs to provide notice and to create storage areas for those entering the courthouse with banned devices.[3] The complaints, changes in policy and actions taken by Cook County following the enactment of this order may prove useful for other courts considering a similar ban.

Cook County provides a particular list of exempted parties which offsets the difficulties of a blanket ban on cell phone use in courthouses.  As St. Louis Circuit Court Judge Steven Ohmer noted recently, a building-wide ban “would be a nightmare for the sheriff, and people would be unhappy as well.”[4] Most members of the Bar conduct business on their cell phones while awaiting their matter to be heard by a judge, and applying a ban to attorneys would likely be met with much opposition. St. Louis City Circuit Court Judge David Mason is of the opinion that “courthouse rules and culture” should not yield to social networking and technology abuse.[5] Given the need to balance courtroom etiquette and proper jury deliberation with the change in our now technologically-addicted culture, rules will undoubtedly have to be enacted to cope with ongoing electronic issues in the courtroom.

In Missouri, multiple circuits have enacted local rules on the use of cell phones and similar electronic devices. In the Thirty-First Circuit, cell phones are permitted in the courthouse, but any cell phone usage within the courtrooms themselves, without the permission of the court or judge, will result in seizure of the phone by the presiding bailiff and return of it at the discretion of the judge.[6]  In the Second Circuit, cell phones must be placed in silent mode and cannot be used for any reason in the courtroom, and any violation of this rule subjects the offender to having his or her cell phone confiscated until he or she exits the courtroom.[7]  The Thirty-Ninth Circuit bans all cameras and recording devices, including cell phones with cameras, except for purposes outlined under Supreme Court Rule No. 16, which permits use for media purposes.[8]  The Fifteenth Circuit mandates that no cell phones are allowed to ring in court.[9] The Thirteenth Circuit restricts all electronic devices, including cell phones and other potential recording devices, from being turned on when entering the courtroom, and any jury member or potential jury selectee is prohibited from even bringing an electronic device into the courthouse.[10]

Considering the power juries have, both in the criminal and civil contexts, courts may want to ensure that during deliberation, jurors do not have access to their cell phones. In the recent and relevant case of State v. Herndon, 224 S.W.3d 97 (Mo. Ct. App. W.D. 2007), the court found that telephone calls made during jury deliberations did not unduly influence the jury’s verdict. However, when it is revealed that prior to rendering a verdict, particular jurors have utilized their cell phones for personal or business use, the trial court conducts an inquiry into whether or not these improper communications affected deliberations. While a mistrial is not required when the court determines that the communications did not sway the jurors or prejudice the party, all cell phones should be confiscated prior to the jury’s deliberation.[11]

In Herndon, several jurors used their cell phones to make personal calls and, most importantly, one of them received a phone call from an alternate on the jury who went so far as to say, “please look at all the evidence” because “this is somebody’s life we’re talking about.”[12]  While the court ultimately found that these communications did not improperly influence jury deliberations, it is important to note that prejudice is presumed when a non-juror has unauthorized communication with jurors. Id. at 101. In criminal matters, when there is prima facie evidence of improper communication between jurors and third persons, the state has the burden to show that the communication did not influence the jurors. Id. Accordingly, it may be prudent to dispose of a juror’s technology before deliberation begins to prevent formal inquiries into possible juror misconduct and avoid possible mistrials.

In addition to the potential abuses of cell phones, the advent and spread of social networking sites has opened the door for more serious jury or juror misconduct. Research conducted by Thomson Reuters and Westlaw found that from 1999–2009, approximately 90 verdicts were challenged based on allegations of internet-related juror misconduct, and nearly half of these instances occurred between 2009 and 2010.[13]Over the last decade, blogging sites, Twitter accounts and Facebooking have exploded to reach almost every corner of the globe, including the jury box. For many years, jurors have been instructed to steer clear of outside sources and communicating with third parties concerning trial matters, but with the influence of the internet ever-growing, more safeguards may be required.

Social networking sites are increasing in popularity, and examples of improper jury conduct are increasing as well. Thomson Reuters monitored Twitter over a three-week period in November and December of 2010, and the results are not surprising: “people describing themselves as prospective or sitting jurors popped up at the astounding rate of one nearly every three minutes.”[14] Most were related to complaints associated with jury duty, but some included clearly improper statements such as, “Looking forward to a not guilty verdict regardless of evidence,” and “I’ve already made up my mind. He’s guilty. LOL.”[15]

In addition to jurors, courts must now deal with the expansive media and numerous news outlets and bloggers who may be present during trial. Like most jurisdictions, Missouri has enacted broadcasting rules related to audio and video coverage of trials, jurors, and relevant parties. Under Supreme Court Rule 16, “Broadcasting, televising, recording and photographing” is permitted so long as court approval is expressly granted and no improper monitoring of juveniles, jurors or attorneys and their clients is conducted.[16] However, this rule does not cover Twitter news and other related sites. With the ease of a few clicks, proceedings may be summarized in part or in whole on the internet, to the possible detriment of the proceedings. Live tweeting during trial is becoming increasingly common, despite orders from judges prohibiting such in court.

Under the Federal Rules of Criminal Procedure, broadcasting during judicial proceedings is banned in the courtroom.[17]  Prior to the 2002 Amendment to Rule 53, the Rule specifically prohibited “radio broadcasting.”[18] The 2002 Amendment eliminated “radio” from broadcasting, leaving a prohibition against “broadcasting” in general, although no commentary on what applies to broadcasting was provided. This change appears purposeful given the explosion of the internet and related websites, and although the Advisory Committee’s notes indicate that this change was not substantive, the notes do reveal that the Committee believed this change was needed to accommodate for the technology now available.[19]

Citing this rule and interpreting it to modern technology, United States District Court Judge Clay Land ordered all tweeting banned from the courtroom during a criminal proceeding.[20] In his Order, Judge Land found that “the term ‘broadcasting’ in Rule 53 includes sending electronic messages from a courtroom that contemporaneously describe the trial proceedings and are instantaneously available for public viewing.”[21] Further, Judge Land reasonably concluded that “’twittering’ would result in casting to the general public and thus making widely known the trial proceedings,” and that “it appears clear that the drafters of Rule 53 intended to extend the Rule’s reach beyond the transmission of trial proceedings via television and radio.”[22]

In contrast to Judge Land’s Order, United States District Judge Thomas Marten of the District of Kansas permitted a journalist to twitter a live feed during a criminal trial of various alleged gang members. Citing Federal Rule of Criminal Procedure 57(b), Judge Marten held that federal judges are afforded broad discretion in regulating courtroom affairs, and that allowing Twitter updates during proceedings would help the public understanding of the judicial system and grant the courts greater legitimacy.[23] Whether or not Judge Marten’s views are widely accepted, his assertion is pertinent to the question of whether Twitter and similar technological advances have a place in today’s courts.

In the past and as technology has advanced, accommodations have been made in the courtroom. From allowing evidence presentations on ELMO projection devices, to permitting live television feeds of court proceedings, such as the infamous OJ Simpson trial, courts have adjusted to modern trends and the technologies many have become accustomed to.  Integrations of technology and law have provided jurors with user-friendly visual aids and tools to decipher evidence, and have given attorneys greater tools with which to deliver their messages. With the advances in technology and an ever-growing online world where anything may be published in a matter of moments, courts will continue to face challenges related to technological innovation.  In addition to tackling the inconveniences of off‑putting cellular telephone rings, inappropriate behavior and jury misconduct, new technology and new devices, courts will need to monitor and ensure the sanctity of the judicial system and the harm advancements in technology create.  Perhaps there is a balance between court procedure and technology, one that may lead to the use of technology in a responsible way and prevent courtroom abuses.