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Saturday, August 15, 2009

Ind. Courts - Continuing on with: Managing the electronic communication revolution in the Indiana courtroom

This will be the 6th ILB entry under the heading "Managing the electronic communication revolution in the Indiana courtroom" The first such entry, dated July 25th, commenced:

It began with stories of cell phones banned in the Allen County Courthouse. That was in November of 2006. Several other counties followed suit, via their local rules. You may find them in this list of ILB entries referencing "cell phones."
This week, Anita Ramasastry, a FindLaw columnist and Professor of Law at the University of Washington School of Law, had this column headed "Why Courts Need to Ban Jurors' Electronic Communications Devices." Some quotes:
On September 1, a new rule will go into effect for Michigan state courts: Trial courts must instruct jurors that they cannot use iPhones, cellphones, or other electronic communications devices as they deliberate about their verdict. Moreover, Michigan is only one of many jurisdictions grappling with this issue. And in some instances, jurors' use of electronic applications such as Twitter has even led to mistrial allegations. * * *

In this column, I will review the current Michigan Supreme Court rule banning jurors' use of electronic devices. I will also argue that it may be wise for courts to go further – as some already have done – by simply asking jurors to check such devices at the courthouse door. * * *

Currently, there is no consensus in the U.S. on how to deal with the problem of jurors' use of electronic devices, according to the National Center for State Courts. Some courts ban electronic devices from the courthouse – asking jurors to leave them at the door. Some judges let jurors keep cellphones but tell them to keep them turned off. Others allow cellphones to be used during breaks. Some courts, like Michigan's, tell jurors not to use their devices in the courtroom or during deliberations.

According to the National Center for State Courts, a number of states have grappled with the problem. The Center surveyed court administrators to find out what courts are doing to stave off the use of electronic communications devices during trials.

To get a sense of the diversity in policies, consider these examples: New Jersey allows jurors to bring cell phones to court, but they must be turned off during trial. In Malheur County, Oregon, and federal court in the Western District of Louisiana, jurors are not allowed to bring cell phones to court at all. In Alaska's first judicial district, a court bailiff confiscates cell phones during jury deliberations. In Minnesota, one county's jury summons makes specific reference to a ban on cell phones, pagers, and PDAs. It explains that the policy "was enacted in the Second Judicial District (Ramsey County) in the state of Minnesota after two mistrials were declared when jurors used cell phones during deliberation against the Court's order," and mentions, "Phones are available in the Jury Assembly Room."

In Multnomah County, Oregon, the court provides a jury instruction that makes explicit reference to certain electronic devices and activities. The court tells jurors: "Do not discuss this case during the trial with anyone, including any of the attorneys, parties, witnesses, your friends, or members of your family. 'No discussion' also means no emailing, text messaging, tweeting, blogging or any other form of communication."

The instruction also cautions jurors about conducting Internet searches and does so in a very clear and commonsense manner: "In our daily lives we may be used to looking for information on-line and to 'Google' something as a matter of routine. Also, in a trial it can be very tempting for jurors to do their own research to make sure they are making the correct decision. You must resist that temptation for our system of justice to work as it should."

Currently, too, an Indiana judicial panel is investigating what can be done about the problem. Last week, the Indiana Judicial Conference's jury committee assigned staff to draft a rule setting uniform limits on jurors' use of electronic devices during deliberations. The rule is scheduled to be presented to the Conference in October.

Ultimately, Collecting Cellphones at the Courthouse Door May Be the Best Solution

While Michigan's rule is a good start, it may not be sufficient. More precise instructions that mention (but of course, are not limited to) applications such as Wikipedia, Google, and the like may be helpful in getting jurors' attention when trial judges instruct jurors not to do research at home. The Multnomah County jury instructions do a good job of making clear what type of electronic communications are prohibited and when they are prohibited. And while jurors are in the courthouse, the best solution will likely be to ask them to check their own electronic devices, yet also make telephones available for their use. After all, justice requires us to pay attention in court and not to be thinking about our next text, Tweet or Web search.

Right back to November, 2006, when Allen County banned cell phones in the county courthouse.

Posted by Marcia Oddi on August 15, 2009 11:29 AM
Posted to Indiana Courts