Michigan Supreme CourtTechnology

The Herald Palladium: Big change in Michigan courtrooms: Cellphones can no longer be banned

By August 7, 2020September 19th, 2020No Comments

ST. JOSEPH — While a witness was testifying in Berrien County Trial Court Chief Judge Mabel Mayfield’s courtroom recently, his cellphone started to ring.

“He immediately shut it off. I didn’t take it away from him, and he continued his testimony. We need to get accustomed to reminding everyone of the rules, and I had failed to do that,” Mayfield said. “Phones must be silent in the courtroom.”

She and other judges, lawyers and court security officers are adjusting to a new law that allows the public to bring cellphones, laptops and tablets into all courthouses in Michigan.

Among their concerns are distractions in the courtroom and an added level of security for court officers.

The Michigan Supreme Court adopted the controversial rule change in January, and it took effect May 1.

Prior to that, rules regarding personal electronic devices were left to the discretion of individual courts in Michigan.

The new rule also allows members of the public to use their phones to photograph state court records. Many court clerks who opposed the rule change said it could reduce revenues currently generated by copying fees.

The Michigan Supreme Court order was approved by six of the seven members of the Michigan Supreme Court, with Justice Stephan Markman dissenting.

Under the new rule, members of the public are allowed to use electronic devices in a courtroom or courthouse to access the internet and exchange email and texts.

Berrien County Trial Court officials see potential problems with that.

“This is an extra level of security for our bailiffs,” Mayfield said. “Yes, we have concerns about sequestered witnesses texting each other. Our court did not support this and we sent a letter of opposition to the Supreme Court.”

She said Berrien County courts have always accommodated people, providing them with the same access to evidence and records that lawyers have.

“I don’t believe (access) was limited,” she said. “My greatest concern now is the protection of the efficacy of the process. Sequestration may be compromised.”

Mayfield said much thought went into Berrien County Trial Court’s opposition to the new law.

“We weighed the pros and cons, and balanced people’s rights versus something that puts a victim at risk. This (the court’s objections to the new law) was not on a whim.”

She noted that she is not aware of any issues so far, but court proceedings have been limited during the coronavirus pandemic, and are just now picking up steam.

Trial Court Security Director Rick Lull said there are rules posted outside every courtroom listing what is and is not allowed, regarding electronic devices, and anyone whose device causes a distraction can be removed from the courtroom.

“We are aware of possible security concerns. This is going to potentially create more of a security distraction of our court officers,” Lull said. “But some courts that have already been doing this say it hasn’t been an issue. We are expecting the worst but hoping for the best.”

Berrien County Trial Court has posted the following rules regarding the use of electronic devices in the courthouse:

No audio/video recording, photography, broadcasting or live-streaming is allowed at any time in the courtroom.

All electronic devices must be silenced before entering a courtroom.

No phone calls are allowed to be made or taken in the courtroom.

A judge and/or his or her designee will terminate use of any electronic device that is disruptive or distracting to court activity.

Photography or video recording of any individual (even in the background of an image) in the courthouse shall not occur without that person’s prior express consent.

No photography or video recording of a juror or potential juror is allowed.

Violations are punishable by sanctions up to and including contempt of court.

When the new rule was adopted, Michigan Supreme Court Chief Justice Bridget Mary McCormack said it will make using the courts easier for witnesses, jurors and people who don’t have lawyers, and gives everyone the same access to courts that lawyers have, which she believes is fair.

Paul Jancha Jr., chief public defender for Berrien County, said allowing the public to bring cellphones into the courthouse is “a good thing.”

Jancha said that before he became Berrien County’s chief public defender, he sometimes represented clients in Cass County, where cellphones had long been allowed, and he never saw any problems.

“Sometimes a client needs to show you a photo or text messages,” Jancha said. “And if someone walks to the courthouse or is dropped off, and they can’t bring their phone in, they have to hide it in the bushes.”

Jancha acknowledged that the new law might make it tough for court staff to ensure that people are not taking pictures of jurors or witnesses, or that sequestered witnesses are not texting one another regarding their testimony.

“It’s certainly a new challenge,” he said.

The new rule came after a process of public comment that drew almost 50 written comments.

Supporters of the new law noted that cellphone access is essential to litigants who represent themselves. They point out that people, including witnesses, litigants and jurors, who do not have a car, have no place near the courthouse to store a phone and therefore are unable to receive messages from their lawyers, family members or employers. This often has negative consequences for them. Some supporters point out that the prohibition of cellphones is especially burdensome for low income people.

Judges who opposed the new rule said it raises privacy and security concerns, including the potential for witness and victim intimidation. And they argued that it is not feasible for judges and court personnel to effectively monitor the correct use of electronic devices.

Many court clerks opposed the rule change that permits using a cellphone to photograph court records because it could reduce revenues currently generated by copying fees.

McCormack said the new rule is largely based on national models already adopted in other states. She said states that have allowed the public to use electronic devices in courts have managed just fine.

Lull said one good thing about people being able to bring cellphones to court is that it will be easier for court staff to communicate with people involved in a case who might be waiting outside.

Court Administrator Carrie Smietanka-Haney agreed, saying, “We can communicate with people about the time of their proceedings.” She said that’s especially helpful now, with limits on the number of people allowed into courtrooms at once due to COVID-19 concerns.

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