Wireless in the Courtroom: Pros and Cons

Recently, the Administrative Office of the U.S. Courts published its Considerations in Establishing a Court Policy Regarding the Use of Wireless Communication Devices. Here's the factors the Report identifies as being important in any policymaking decision:

Considerations Favoring Entry of Devices

a. It is estimated that there are 170 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. It is also estimated that, by 2006, 80% of the phones sold in the United States will be camera phones. 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.

b. 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.

c. Electronic courtrooms are becoming increasingly common, and often attorneys must bring in laptop computers in order to present their case on electronic evidence display systems.

d. Many courts are located in buildings with other tenants, such as the Social security Administration 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.

e. Stenotype wireless systems allow the court reporter to move about the courtroom and to attend a sidebar without being tethered to a wire.

f. In some courts, judges use instant messaging to communicate with courtroom deputies and pre-trial and probation officers who are using portable wireless devices such as Blackberrys.

g. Some accommodation needs to be made for the press to bring in laptops, cell phones, and other wireless devices when appropriate.

Considerations Favoring Restrictions on Entry of Devices

The use of these devices can also have a detrimental impact on court proceedings in the following ways:

a. Surreptitious filming, photographing, recording or transmitting of court proceedings outside of the courtroom in violation of prohibitions. This has happened in some state courts, with photos being published in the newspaper or on the Internet.

b. Taking of pictures of jurors, witnesses, or undercover agents which may be used to intimidate or bring harm to these individuals.

c. Disruption of court proceedings by noises emitted by these devices when someone is being contacted (even when the device is in silent mode) or individuals responding to calls in the courtroom. This has happened in courthouses even when there is a requirement that these devices be turned off, and judges have fined or even jailed offenders to prevent reccurrences.

d. Use of cell phones by jurors during deliberations, which resulted in fines.

e. Use by jurors of laptop computers or other devices with Internet access to research issues or even access court files during the course of a trial.

f. Use of cell phones on standby status have produced interference with court digital tape recording systems.

g. Courts should also be aware that electronic devices are now available that can effectively jam any attempts at communications from the courtroom to the outside or provide notice when any wireless portable communication device is turned on in the courtroom if that is prohibited by the court’s policy. It is not clear whether the legal prohibition on the private use of jamming devices would be applicable to use by courts. Devices which detect use of cell phones, etc. are not under any legal restrictions. There is no funding available for these types of devices. Stenotype wireless communication between a court reporter’s stenotype machine and computer may be intercepted or jammed by these type of devices resulting in the broadcast of the proceeding or the loss of the record.