The jury is out: smartphone use in the courtroom

Stop me if you’ve heard this one before: smartphones are changing our lives! By now it’s not exactly breaking news that mobile devices and their social networking capabilities are changing the way we work, live and play. Even the resistant-to-change legal profession has not escaped this barrage of connectivity: a recent survey by Clio found that 62 per cent of law firms use Apple’s iPhone.

While smart phones have changed the way lawyers do business mostly for the better, mobile devices in courtrooms are becoming increasingly problematic. The ability for those in court to connect with (potentially) thousands of people via social networking, text message or email via their smart phone can have serious implications for judicial proceedings.

A January 2013 Slaw post discussed an interview on CBC Radio’s Spark with Canadian Centre for Court Technology (CCCT) CEO Patrick Cormier on the role of smartphones in the courtroom. Work by the CCCT has highlighted a lack of consistent policies on the use of mobile phones and devices in the courtroom.

As Cormier states in the interview, the key decision is whether mobile devices (and the social networking and communications capabilities they enable) are by default permissible or not in courtrooms. In an effort to get courts across the country on the same page, the CCCT has created the Draft National Guidelines Regarding the Use of Electronic Communication Devices in Court Proceedings. The draft guidelines are in the permissible camp, with a few caveats such as a publication ban or judicial orders.

In our age of accountability Cormier notes that smartphone use in the courtroom highlights tensions between the right to a fair trial, and a growing insistence on an open and transparent legal processes. To balance these issues, the draft guidelines permit the use of mobile devices by lawyers, paralegals, court staff and journalists, but not by members of the public in the courtroom.

In keeping with this stance, the Ontario Superior Court recently issued a protocol, effective February 1, 2013, that permits the use of electronic devices in the courtroom for journalists, counsel, paralegals etc., but explicitly prohibits the use of such devices by members of the public. Courtroom photos and video are also banned, so Instagram addicts will have to holster those phones.

Finally, it seems that smartphones and social networking are proving to be a liability for jurors in the US (and perhaps Canada as well?). An article in the Duke Technology and Law Review on jurors and social media use cites a recent case in which “the Arkansas Supreme Court reversed a death sentence because a juror Tweeted during deliberations.” In another example of misconduct, “a Connecticut juror wrote on Facebook that jury duty was “boring,” and pleaded for “[s]omebody [to] get me outta here.” That same juror announced “Guilty :)” on her Facebook page on the day of the verdict.”

While it’s clear that social media use by jurors conflicts with the right to a fair trial, banning members of the public from tweeting and texting in the courtroom while allowing lawyers and media to do so seems more controversial and problematic.

What is your take on this issue — do you think that smartphones belong in the courtroom?

Andi Argast

About Andi Argast

Freelance writer, part-time LAO Communications Advisor, full-time grad student (critical information studies). Interested in digital activism and community informatics. Opinionated in a good way.