Time to Allow Possession of Cell Phones in Courthouses and Courtrooms

 As part of its 2020-2023 Strategic Plan, the Illinois Supreme Court Commission on Access to Justice plans to draft a uniform policy, to be presented to the Illinois Supreme Court, allowing greater use of cell phones in courthouses and encouraging adoption of a uniform policy statewide.

I believe it’s high time to permit cell phones in courthouses and courtrooms, not just for lawyers, but for pro se litigants and members of the public as well. In January 2020, the Michigan Supreme Court adopted a new statewide policy allowing just that. Under Michigan’s new policy, cell phones must be silenced, they cannot be used for photography, recording, or communication with witnesses or jurors, and the judge retains ultimate discretion to determine what cell phone activity is disruptive or likely to compromise courthouse security. Michigan’s policy is eminently reasonable and loaded with appropriate safeguards. Illinois should follow suit.

The Michigan Supreme Court’s order came with a dissenting opinion by Justice Stephen Markman, who characterized the use of cell phones as “a mere individual convenience” and laid out his arguments against the new statewide policy. First, he criticized the new policy’s one-size-fits-all approach, opining that policing the new rules will be more difficult in large, busy courtrooms than in small courtrooms. Second, he expressed his worry that cell phones will threaten the “solemn proceedings” and “compromise the necessarily formal and focused atmosphere of the courtroom.” Third, he warned that cell phones could be used to capture photos or recordings “to gain information about witnesses and jurors in order to intimidate, compromise, or embarrass these persons.”      

Justice Markman’s parade of horribles could be better described as a parade of dagnabbits.

His argument against the one-size-fits-all approach—an argument that could be made against any rule of general applicability—is a mischaracterization of the new Michigan policy, which gives courtroom judges discretion to “terminate activity that is disruptive or distracting to a court proceeding, or that is otherwise contrary to the administration of justice.”           

Justice Markman’s second fear, that the introduction of cell phones will destroy the solemnity of the courtroom, rests on the faulty assumptions that (1) cell phones are not already ubiquitous in courtrooms (they are, in the hands of lawyers) and (2) cell phone possession cannot coexist with solemnity (it can, as is obvious to anyone who has attended a church service, wedding, or funeral during the age of cell phones). Similar curmudgeonly arguments were made against allowing extended media coverage, closed-circuit video arraignments, and doing away with the powdered wig. And although Justice Markman is correct that occasional “beeps, buzzes, and personalized ringtones” could invade the serenity of the courtroom from time to time, the justice system is not so fragile as to collapse under such trivial disturbances, if they occur.         

Finally, the claim that cell phones will be used to somehow tamper with witnesses or jurors is more of an imagined boogeyman than a practical reason to maintain cell phone bans. Illinois already allows extended media coverage of trials, including audio and video recordings that are televised and posted online. Journalists often publish witness names and verbatim reports of their testimonies. Those who arrive in courtrooms to testify or serve as jurors are already subject to the gazing eyes of audience members whose right it is to attend public proceedings. Anyone with a cell phone may stand outside a courthouse’s front doors and document all who enter. And any fear that outside information might reach a juror during trial can be remedied by embargoing the jurors’ cell phones during proceedings. Witness and juror tampering is bad when it happens, but given the already public and open nature of our court systems, it’s hard to believe cell phone bans are the floodgates that, if broken, would unleash a meaningful increase in such misconduct.

The downside of cell phones in the courtroom is mild, but what about the upside? Take the following made-up case of Jane Doe as an illustration.

Jane, a single working mother, wakes up one morning to find a threatening voicemail from her abusive ex-boyfriend. She texts a babysitter to come look after the kids while she goes to the courthouse to obtain an emergency order of protection. Arriving at the courthouse via Uber, Jane is turned away at the metal detectors and told she can’t bring her cell phone inside. She walks around the block and, making sure the coast is clear, slips her cell phone into a bush, hoping the rain holds off. (This is an actual practice—I’ve seen it done.)

Inside the courthouse, Jane starts on her petition. The form asks for the date of birth, addresses, and other biographical information for her ex. She doesn’t have this information memorized, but she could have figured it out using various apps and information stored on her cell phone. She leaves those lines blank. Doing her best to remember the contents of the threatening voicemail she received, she jots down a paraphrased version and goes to the courtroom for the emergency hearing.

She waits almost an hour for the judge to call her case, regretting having told the babysitter she wouldn’t be gone for long. Finally her case is called. The judge, reading her petition, is hesitant to grant an emergency order of protection based on a single voicemail. He asks Jane if she’s received other threatening messages in the past. She has, but cannot recall the exact dates or details. “That’s all on my phone, Your Honor.” The judge denies the emergency order of protection, but tells Jane to come back in exactly two weeks at 3:00 p.m. with printouts of the other threatening messages. (She’ll need to find someone who owns a printer.) “Does that date work for you?” the judge asks. Jane, not able to consult her electronic calendar, says “sure,” forgetting her son, Johnny, has an appointment with his asthma specialist that same date and time.

Finally, exiting the courthouse, Jane retrieves her phone from the bush and sees a series of text messages from the babysitter:
“Johnny says he’s having trouble breathing. What do I do?”
“Where do you keep Johnny’s inhaler!??”
“I don’t know what to do. He’s not getting better.”
“Just called 911. Ambulance on its way.”

Jane’s story is fictional, but the troubles she faces are not. People come to courthouses to conduct important business, but cell phones bans often deprive those people of the tools necessary to accomplish their tasks. Cell phone bans also trivialize the important role, for better or worse, that cell phones play in important daily life affairs of most adults.

The 2020-2023 Strategic Plan of the Illinois Supreme Court Commission on Access to Justice can be found here: https://courts.illinois.gov/SupremeCourt/Committees/ATJ_Commn/01-Strategic_Plan_2020.pdf

The Michigan Supreme Court’s Order and Justice Markman’s dissenting opinion can be found here: https://courts.michigan.gov/Courts/MichiganSupremeCourt/rules/court-rules-admin-matters/Adopted/2018-30_2020-01-08_FormattedOrder_AmendtOfMCR8.115.pdf