Come May 1, the general public will be allowed to take their iPhones, Androids and other handheld electronic devices into court buildings and inside courtrooms, the Michigan Supreme announced this month, amending a rule that allowed courts to set their own policies on whether to allow them.
Timothy Kenny, chief judge of Wayne County Circuit Court, applauded the ruling, noting that for many people, the cellphone is their only means of communication.
“The court is supportive of (the rule),” Kenny said. “There will be instances where restrictions are needed to maintain security and prevent proceedings from being disrupted — especially in criminal cases, where you don’t want individuals taking photographs of jurors. We’ll meet with court administration and judges to decide how to craft our policy going forward, consistent with the Supreme Court order.”
Local attorneys also applauded the decision.
"That's great," defense attorney Patrick Nyenhuis said. "It allows communication with the client when the lawyer is in the courtroom and the client is in the wrong spot."
Nyenhuis added that while some court personnel will be irritated if a cellphone rings during proceedings "the interruption will be small when compared to the (phone privileges) we will all have."
Chief judges at each court had been able to determine whether phones or devices could be brought into their courthouses.
Judges will still have the authority to not allow a cellphone into their courtroom if it becomes disruptive to a court proceeding, the justices ruled.
Also, as part of the ruling "attorneys, parties and members of the public may use a portable electronic device in a courtroom to retrieve or to store information (including note taking), to access the Internet, and to send and receive text messages or information," the state Supreme Court justices ruled.
People can also use their phones to "reproduce" public court documents in a clerk's office so long as the phone or device does not mark the document, or it doesn't interfere with the operation of the clerk's office.
Defense attorney Victoria Burton-Harris said the ruling will give members of the public the same access and convenience that attorneys enjoy.
"Attorneys are allowed to bring their phones into the courtroom and use them to record dates on their calendar, contact court staff and other attorneys when they are running late and take notes during proceedings," said Burton-Harris. "The public has the same needs and shouldn't be barred from participating in court proceedings in this digital age because they don't have a license to practice laws."
Burton-Harris and Nyenhuis both noted that many local litigants rely on public transportation and ride-share services to get them to court, making phone access in court critical.
"Having a cellphone allows litigants to exercise their due process rights," said Burton-Harris.
The high court's decision was not unanimous. Justice Stephen Markman dissented from the amendment, outlining five alternatives:
- Preserve the status quo
- Require courts to provide storage for phones
- Allowing jurors "or other persons with specifically defined needs to bring phones into courtrooms"
- Establishing procedures for special permission to allow phones
- Allowing people representing themselves to carry phones
"First, it is not apparent that a 'one-size-fits-all' approach best addresses the diverse role and character of courtrooms, and the distinctive configurations of courthouses" in Michigan.
Second, he wrote, "courtrooms are home to solemn proceedings demanding the fullest attention of participants ... Allowing individuals in courtrooms to casually browse the internet, to text, or to play games, may introduce distractions into these proceedings, or compromise the necessarily formal and focused atmosphere of the courtroom."
Third, the courtroom "is also not a 'place' or a 'time' for ... forms of conduct that might be entirely proper under different circumstances," Markman wrote.
Markman wrote he also was concerned that people would be able to take photographs that would impose "upon the privacy or security interests of witnesses and jurors."
"These photographs may then be used to gain information about witnesses and jurors in order to intimidate, compromise or embarrass those persons, undermining in the process an entire justice system ...
"In adopting a rule that allows phones in the courtroom, this court gives greater regard to a modest increase in personal convenience than to the traditional sanctity of the courtroom and the security of jurors and witnesses," Markman wrote in his closing paragraph.
Kevin Oeffner, court administrator for Oakland County Circuit Court , said the court "anticipated" the change, but took no formal position on it beforehand.
"We will have to comply, and we certainly will," Oeffner said, adding that he expected judges and other officials would meet in the weeks ahead to discuss what the rule requires and how to adjust to it.
Absent specific exceptions for lawyers and others, the public was "generally prohibited" from bringing phones into the court, he said.
Macomb County Circuit Court has allowed the use of cellphones and electronic devices since June 2013. The devices must be turned off or turned silent before entering a courtroom, according to guidelines posted on the court's website.
They can be used to communicate if put on silent mode. Jurors can't use them, and people are prohibited from photographing jurors or witnesses. Pictures can't be taken from inside courtrooms without the permission of the court.
Those who don't comply can have their phones confiscated, according to the posted rules.
Officials at Detroit's 36th District Court did not respond to requests for comment.
Chief Justice Bridget McCormack told The Detroit News previously, in the days leading up to the amendment, that the public response was "overwhelmingly in favor" of it.
"There are more self-represented litigants in 36th District Court than anywhere else in the state," McCormack said. "Say you had to Uber to court, because you don't have a car. You get there and have to leave your phone in the bushes, and maybe someone will steal it. Or if they have proof of poor conditions (in a landlord-tenant case), and all the evidence is on their cellphone."
The Michigan Judges Association recommended, via public comment, that "members of the public should not be allowed to have (cellphones) in the courtroom," but that self-represented litigants, parties to a case and attorneys would be allowed, "but only if powered off," and that people hoping to use them "for a proper purpose, such as legal research or the presentation of evidence" request permission.
The Oakland County clerk of court's office "strongly" opposed the amendment, writing in an August letter to the high court that cellphones "would be a disruption to the judicial process," which would carry "the potential for jury tampering, witness coercion, etc."
The Michigan Court Administrators Association wrote that "all cellphones must be assumed to have cameras," and that ensuring they were not used improperly would require additional staffing, "a very costly endeavor."
The administrators offered concerns regarding the anonymity of undercover police officers and the protection of witnesses, who could be coached electronically on how to testify.
"The risks to adopting these rule changes massively outweigh the potential benefits," the association wrote.
Barb Byrum, Ingham county clerk, offered both privacy and financial concerns regarding people taking pictures of court files.
"Specifically, this could result in easier release of confidential/non-public information. Further, this may result in pictures being taken rather than certified copies being purchased, resulting in a loss of revenue," Byrum wrote.
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