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Courts Turn To Cellphone Bans Despite Access Concerns

By RJ Vogt | December 2, 2018, 8:02 PM EST

Facing a court date in Massachusetts over a potential eviction, Erin O'Leary knew she couldn't bring her cellphone. Her daughter had recently been forced to stash her own phone in bushes outside the courthouse after security barred her from taking it inside, even though she didn't have a car.

So on the day of her hearing, O'Leary, who has braces on her legs, dutifully left her phone at home and made her way to the Somerville District Court with her daughter, using public transportation for people with disabilities. The service required appointments for rides, and although O'Leary tried to plan for enough time, the hearing ran long and she missed her return trip home.

With no phone to call for a new ride, and no working pay phones at the courthouse, she and her daughter began walking home in 90-degree heat. Along the way, she stumbled and smacked her head on the pavement. Two nurses at a nearby restaurant happened to see her accident and rushed to help, eventually calling a car to take O'Leary the rest of the way home.

"I would have just called a cab myself," O'Leary told Law360, remembering the ordeal. "But you're really stuck these days if you don't have your phone with you."

Such is the conundrum for litigants without lawyers in 56 Massachusetts trial court facilities with active cellphone bans, according to research published in July by the Massachusetts Appleseed Center for Law & Justice.

"These bans are unduly burdensome to litigants — especially those without representation — and have a harmful effect on access to justice in Massachusetts," the report states.

And that warning applies beyond the individual Massachusetts courthouses that have instituted bans. In courtrooms across America, phones are often prohibited unless someone is an attorney, juror or court staffer, raising concerns that such policies make it that much harder for lower-income individuals to make court hearings and fully represent themselves in cases.

For example, Missouri's 42nd Judicial Circuit bans parties and members of the public from bringing cellphones into the courtroom. In South Dakota's Fourth Circuit, camera-equipped cellphones are not allowed in the courthouse. In Illinois, 48 out of 102 counties have banned cellphones and other electronic communications devices from courthouses.

Just last month, a circuit court in Baldwin County, Alabama, instituted its own prohibition on cellphones, citing incidents in which people were recording proceedings without permission.

"The recordings have included testimony which could be shared with other witnesses waiting to testify and or uploaded to social media, including recordings of victims and defendants in criminal cases," wrote presiding Circuit Judge Scott Taylor in a Nov. 16 memo. "I realize that many of your clients and witnesses will complain to you about this policy, please remind them that this is for their protection and for the protection of their proceedings."

Judge Taylor did not respond to a request for comment but Jim Sweet, a contract public defender in the county, said there may be some benefit to the policy because it could prevent people from intimidating witnesses. He added that, while he sees the ban as an "inconvenience for all litigants, regardless of income," it does allow people to request a judge's permission to bring in phones.

However, the process of requesting permission might not be as simple as it sounds.

According to security officers from Baldwin County's Foley Courthouse, a person would have to leave the phone in his or her car, go through security and ask the judge or the judge's assistant for permission to go back outside and retrieve the device. For those without vehicles, there are no lockers; Law360 was told it would be best to contact the judge's office ahead of time in those instances.

Deborah Silva, executive director of the Appleseed Center, said the policy's assumption that everyone using the courthouse will have a vehicle to store their phones could be problematic.

"Admittedly, Baldwin County is not heavily urbanized and appears to not have an extensive public transportation system, but it is still likely that many court users may be driven to the courthouse by family, friends, or an Uber or taxi — and consequently lack anywhere to store their phones," she noted.

The Baldwin County memo, addressed to the local bar association, warns that anyone unauthorized to bring in cellphones must return their phones to their vehicles "or security will be caused to confiscate them, and they will not be returned." Silva questioned whether the same notice has been given to the general public.

"It seems heavy-handed to entirely ban cellphones rather than just restrict how and when they are used," she said.

Administrators and judges around the country agree that the issue needs to be more closely examined. In August, the Conference of Chief Justices and Conference of State Court Administrators adopted a resolution supporting review of courthouse cellphone policies, "so as to appropriately balance the security risks posed by cellphone use with the needs of litigants, especially those who are self-represented."

The Appleseed Center's July report, titled "Cell Phones in the Courthouse: An Access to Justice Perspective," recommended a universal permissive policy that allows all personal electronic devices in courts so long as no photographs, recordings or broadcasts are taken without prior permission.

Beyond the logistics of getting to and from court, cellphones can be crucial for litigants seeking to display evidence in the form of pictures, texts, emails and voicemails, the report noted.

For those with representation, it’s easy enough to simply hand their phones over to their attorneys, who are allowed to bring them into the courtroom under most cellphone policies. But those without legal representation are left dependent on printers, hard drives and other electronic equipment that they may or may not have.

Tracey Tobin, a Massachusetts resident who helped defend her brother in a Framingham District Court foreclosure case, said a cellphone ban meant she had to print out reams of documents — only to see the opposing side's lawyer whip out her device to look up case law.

"I said something like, 'Your Honor, I don't understand how this is fair,'" Tobin said. "'This woman has a law degree, she passed the bar. Yet she's allowed to reference legal information at the tip of her fingers — and here I am, Joe Schmo from the streets, trying to do my best and I don't have those kinds of resources.'"

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.