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Cell Phones and Juror Misconduct in Maryland's Courts

Texting While DatingThe news and blogosphere has been chock-full of stories the past year about social networking in the courtrooms.  There have been incidents of witnesses receiving text messages while giving testimony, and jurors posting status updates while in the jury box and doing internet research during deliberations.  Some result in mistrials, and many lead to lengthy appeals that delay final justice.

Most courts deal with the reality of social networking on a very reactive basis.  Given the relatively recent explosion of networking sites, courts and rules committees have not yet addressed networking in the courtroom, with most restrictions being imposed individually by judges with little guidance.  The principal issue presented to judges is whether to allow lawyers, witnesses and jurors access to their cell phones that almost universally have access to text messaging if not internet access.  With internet access, the user has direct access to read and post messages on sites like Twitter and Facebook.

Courts examining their policies on electronic communication devices must factor in jury attitudes about the policy.  Jury service is inconvenient at best, and cell phones can minimize the inconvenience by allowing them to contact their businesses and families.  Disallowing cell phones can be a disincentive to serving.

Proposed Rule 18-XXX, set for consideration by the Rules Committee on October 2, 2009, generally prohibits electronic devices in Maryland state courts.  Exceptions are given for judges, officials and employees of the court, attorneys who present identification, and to others who receive special permission from the judge.  Jurors may bring electronic devices into the circuit courts if they present appropriate identification.  The Rule prohibits electronic devices in jury deliberation rooms.  It also prohibits electronic devices in the courtrooms, unless permitted by local administrative judges or the presiding judge of a particular case.  And, those devices must remain turned off unless permitted by the local administrative judge or presiding judge of a particular case.

Under this proposed Rule, it appears that jurors will likely be able to bring their cell phones into the court facilities with proof that they are jurors in a particular case.  It is not clear if those jurors will be allowed to have their phones in the jury rooms prior to deliberations, but the Rule certainly prohibits phones with the jury during deliberations.  Attorneys will need to have court approval in every case to bring in and turn on computers (if capable of “transmitting or receiving messages) and cell phones in the courtroom.

The rule for electronic communication devices in Maryland’s federal courts is that “[c]ell telephones, pagers, portable electronic games, portable laptop computers, Palm Pilots, etc., are permitted in the courthouse, but MAY NOT be used in courtrooms or jury rooms. These items are subject to a security inspection.”  There is no official provision for lawyers’ use of these devices during trial, so a practical approach would be to request permission from the judge.

The question is whether these rules make sense.  In this day and age, it does not make sense for attorneys to have to ask judicial permission to use cell phones, computers (with wireless or broadband cards) and other electronic communications devices in the courtroom.  We need to be able to reach witnesses, research cases online, and send e-mails to our office to prosecute and defend our cases.  The real danger is juror misconduct.  The most we can do is prohibit electronic communications devices during jury deliberations, give jurors specific instructions to avoid communicating about the case in any manner, and inform jurors that they should immediately report to the judge all violations of the rules by their co-jurors.