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Tuesday, August 11, 2009
Ind. Courts - Still more on: Managing the electronic communication revolution in the Indiana courtroom
Updating this ILB entry from Aug. 4th, Katherine A. Helm (currently clerking for a U.S. district court judge in California and will soon be clerking for a U.S. court of appeals judge in Washington) writes for The National Law Journal in a lengthy article:
The explosion of Web 2.0 technology has revolutionized the world. Given the role Twitter played in the Iranian election fallout, perhaps we shouldn't be surprised to hear about a juror twittering in court or a witness texting on the stand. Some might even think it pedestrian to lament that trials are being waylaid by interactive technology in courtrooms. Yet this phenomenon has rivaled swine flu mania among the legal bar with good reason. The use of electronic devices like cell phones and BlackBerrys by jurors and witnesses, in a manner that disrupts and taints court proceedings to the level that presiding judges are forced to declare a mistrial, is serious injustice indeed. * * *An informal scan of the judicial landscape indicates the reaction of many judges to date has gone one of two ways: Either avoid the issue and hope that your court is not the one that will need to declare a mistrial, or else mitigate the problem by modernizing jury instructions regarding the duties not to interfere with or otherwise mar the presentation of evidence. Although the second option is more commendable than inaction, it probably doesn't best manage the problem, either.
The best way to manage this problem is one that only a handful of courts across the country have adopted: Allow preauthorized counsel to bring electronic devices into the courtroom and make all other courtroom attendees (jurors, witnesses, observers) check their devices in the lobby. The Southern District of New York is testing out such an interim rule now, where authorization can be given only by specific court order -- although being forced to specify each device for each named attorney each day might be overkill.
A generalized preauthorization rule for lawyers would solve the constitutional defense question, many of the jurors-gone-wild scenarios and the witness going rogue on the stand situation. It would also address security concerns that the press or public could be surreptitiously recording court proceedings or photographing jurors or witnesses. Enforcement of the rule would also mitigate courtroom disturbances caused by the typical cacophony of cell phone ringers and the like.
More courthouses should incur the extra cost to have the U.S. marshals run a check-in system at security screenings, like the ones at museums and concert halls, to avoid the incalculable costs of mistrials due to tainted proceedings. The recent National Sheriffs' Association conference discussed this effort for sheriffs at state courts and for U.S. marshals in federal courts. Now is the time for the U.S. Marshals Service to invest in this court security across the nation. It may not be a panacea, but it is progress and it avoids further balkanizing individual courts, courthouses or districts with splintered self-policing.
Posted by Marcia Oddi on August 11, 2009 12:13 PM
Posted to Indiana Courts