May 13, 2020
The Michigan Supreme Court adopted a rules change to allow cell phones in all 242 courts in the state. The increasing prevalence of cell phones left courts struggling with how and when to allow the devices into the halls of justice. Many courts developed policies banning the devices over disruption, intimidation, privacy, and security concerns.
Michigan is not alone in reconsidering its policies surrounding cellphones and other personal electronic devices in the courts. Virginia has approved a Model Policy for the Use of Portable Electronic Devices in Courthouses and Courtroomsthat recommends allowing such devices in the courthouse. The Massachusetts Judiciary's Access to Justice Commission in 2019 concluded "cell phone bans create unacceptable hardships and should be phased out in favor of alternative security measures that have been shown to guard against the dangerous misuse of cell phones in the courthouse while still meeting the needs of court users and visitors to have access to their devices." Unlike Michigan, Virginia and Massachusetts’s policies are voluntary. An increasing number of pro se, or self-represented litigants, gave rise to new concerns surrounding personal devices, spurring the need to revisit existing policies as Michigan, Virginia, and Massachusetts have done. NCSC's 2015 The Landscape of Civil Litigation in State Courts found as much as 76% of all civil litigation involves at least one pro se party.
In August 2018 the Conference of Chief Justices and the Conference of State Court Administrators (CCJ/COSCA) adopted Resolution 7 In Support of a Review of Courthouse Cell Phone Policies, noting there is a “need to strike a careful balance between expanding meaningful access to the judicial system and protecting the safety of witnesses, jurors, prosecutors, and all court personnel and court users”. Among factors CCJ/COSCA recommend be considered:
- Accessing and presenting evidence stored on cell phones;
- Gathering information and conducting legal research on the Internet;
- Communicating with individuals outside of the courthouse, for example, to coordinate appearances of "on-call" witnesses, childcare, eldercare, or transportation; or
- Using cell phones to overcome language or accessibility barriers, for example, accessing translation services or hearing assistance applications;
In July 2019 CCJ/COSCA adopted Resolution 3- Admission of Evidence from Cell Phones and Other Personal Electronic Devices reiterating the factors above. CCJ/COSCA recommend the following be considered:
- the types of hearings people were seeking to present cell phone evidence, such as custody and evictions,
- notice to the other party,
- preservation issues,
- limited court resources, and
- the need for guidance.
The resolution recommends states adopt policies or protocols to address the practical and evidentiary issues that come with evidence being presented on personal electronic devices.
For more reading on personal electronic devices in the courtroom see Trends: Close Up Cellphones and Self-Represented Litigants and Cell Phones in Court Duke University’s Judicature. Interested in what other courts are doing regarding cellphones? Visit NCSC’s Legacy Page for links to various courts’ electronic devices policies.
For more information on this or other topics impacting state courts, contact Knowledge@ncsc.org or call 800-616-6164.