The chart, intended as a handy reference, outlined what technology (digital presenters, DVD players, etc.) the courts had, the process for lawfully getting technology past security, and the rules on cell phones. Back then, the courts were fragmented, and had various policies regarding cell phones. Some courts banned them outright. Some courts banned phones capable of taking pictures.
The rise of smartphones has made those rules unbearable to the bar. Lawyers depend more and more on their cell phones. In the beginning, it was nice to have a cell phone so we could contact our clients and find out why they were not at court when we told them to be there. Once we were able to access e-mails through our phones, they were useful to contact the office for emergency trial research, and to communicate with experts to let them know their testimony was going to be earlier or later than expected.
Now, phones with access to the Internet allow us to perform instantaneous research on potential jurors, to find caselaw through Westlaw or Lexis, and to check our calendars for conflicts when selecting trial dates. If I had to choose between having a legal pad or my phone at court, I would choose my phone every time.
After some false starts (see our 9/30/09 blog post), the brand new Rule 16-110 unifies the state’s courts and allows cell phones, laptops, iPads and other electronic devices in circuit and district courts. There are some restrictions, of course: The use of these devices must not interfere with the business of the court, and photography and video are generally prohibited.
The rule prohibits electronic devices in the jury rooms, which is an important safeguard to ensure that our jurors do not succumb to temptation and look up people or words on the Internet during deliberations.
In the courtroom these devices must be turned off, except as directed by the presiding judge, who must “liberally allow” attorneys in the proceeding being heard to use their electronic devices in connection with the proceeding (so don’t read non-case related e-mails on the threat of contempt!). The rule is a little vague as to whether judicial permission should be sought beforehand.
The biggest hole in the rule is that it makes no provision for use of electronic devices in the courtroom by people not immediately before the judge. For example, if I’m in the district court at 8:45 a.m. waiting for my case to be called, which sometimes takes until noon, I am not technically allowed to use my laptop or cell phone.
I suspect that most people will continue to use their devices back in the peanut gallery. In my experience, most judges or bailiffs give a quick instructional warning at the beginning of the docket that cell phones should be set on silent — this arguably may imply specific permission to use those phones on those conditions. Though Rule 16-110 does not specifically grant a judge the right to make that decision, they probably can.
The rule, spearheaded by the MSBA, has been in effect since Jan. 1, 2011. So what are you waiting for? Take your cell phone to court.