ONLINE LAW Electronic Media in Courts The Wireless Committee Update
BY MARK MELTZER
A wire tethered the telephone
for more than a hundred years, but in the
late 20th century, telephones became wireless. Motorola marketed a mobile “brick”
phone in 1983.1 Digital cellphones commercially appeared in the early 1990s.
Innovative electronic products that entertain and connect to one another followed
in quick succession, including iPods
(2001), Facebook (2004), YouTube
(2005), Twitter (2006), iPhones and
Kindles (2007), Droids (2009), and iPads
(2010). Within two years of its debut,
Apple had sold more than 10 million
iPads. 2 By 2012, a majority of Americans
had Smartphones. 3
Among the individuals who now have
this ubiquitous technology are the attorneys, parties, witnesses, jurors and spectators who participate in the 2 million court
cases filed annually in Arizona. 4
email, phone and video calls, text messages,
internet browsing, taking pictures and
videos, research, blogging, and posting to
social media sites.” The Order established
the “Wireless Committee” to address issues
arising from use of advanced technology
during court proceedings. 5 Wireless
Committee members include judges at
every level of the state judiciary, general and
limited jurisdiction clerks and administrators, a jury commissioner, a court public
information officer, a court security manager, a representative of the State Bar, and
media representatives. Justice Robert
Brutinel serves as chair of the Wireless
Committee.
CHRIS TOS GEORGHIOU © SHUT TERS TOCK.COM
Committee Established
The latest technology does not raise entirely new issues. For example, jurors in the
past may have violated the court’s admonition by searching for information concerning a case in books or newspapers, on television or radio, or by visiting a scene where
events occurred. A juror today might
obtain information about a case, or view a
scene “virtually,” by using the Internet.
The Internet merely provides jurors a new
method to violate a well-established prohibition. A judge’s traditional instruction to
witnesses not to speak about the case is still
relevant, although it needs an update to
cover Facebook and text messaging. Some
courthouse visitors with small and quiet
cameras are now individual media centers
unto themselves, yet concerns about the
presence of cameras in the courtroom have
existed for decades.
In March 2012, Chief Justice Rebecca
White Berch entered Administrative Order
2012-22 (the “Order”). Her Order noted
the “unprecedented growth” in the number of hand-held smart devices, laptops
and tablets. The Order described how
these mobile and wireless devices “may be
accessed nearly anywhere and anytime for
Crafting an Intelligent Device Policy
The Wireless Committee began with a fundamental issue: Should Arizona policy prohibit the use of electronic devices during
court proceedings? Some jurisdictions have
done this, but the Wireless Committee’s
consensus was to allow the use of such
electronic devices. 6 Requiring surrender of
devices at courthouse security would create
a logistical nightmare, and even disallowing
use of devices in the courtroom would be a
challenge to enforce. A more constructive
approach is permitting partial use of electronic devices.
Use of technology in the courthouse is
an evident trend. New courthouse designs
include wireless Internet access, and clerks
are going “paperless.” Electronic technology enhances the efficiency of judges, courtroom staff, attorneys and journalists.
Technology allows citizens a connection
with their families and workplaces while
serving jury duty. The Wireless Committee
sought to accommodate a productive use of
technology by courthouse visitors, while
comporting with the needs of the judicial
system for due process, decorum and security. A good judicial policy supports use of
new technology—and recognizes its limitations.
One of the most obvious limitations is
that while a courtroom is in session, court
policy should not permit a person to make
or receive telephone calls, or to use a device
for other audi-
ble functions,
without the
court’s permis-
sion. Another uncontroverted restriction is
disallowing jurors the use of their electronic
devices while they are in the jury box, or
during their deliberations. A judge might
need to limit use of electronic devices in a
high-volume courtroom if those devices
interfere with the judge’s effective manage-
ment of a calendar. There may be circum-
stances where legitimate security concerns in
a courtroom justify restrictions. Elsewhere in
the courthouse, court policy should protect
the privacy of witnesses, jurors, prosecutors
and judges by precluding non-consensual
photography and video recording.
Photography
Administrative Order 2012-22 directed the
Wireless Committee to consider revisions to
Supreme Court Rule 122. The Supreme
Court adopted this rule, titled “electronic
and photographic coverage of public judicial
proceedings,” in 1993 to codify the media’s
use of cameras in court. No one should be
surprised that a camera now built into an
iPhone has resolution far superior to that of
a broadcast camera circa 1993, which
required two people to move into the courthouse. Rule 122 refers to tripods, wires and
flash bulbs, but tripods and flash bulbs are
no longer essential, and wires may be passé.
Most cameras today are considerably less
obtrusive and distracting than the ones used
in 1993. Some cameras operate remotely.
The new, proposed Supreme Court Rule
122.1 enumerates the Wireless Committee’s
recommendations concerning permitted and
prohibited uses of portable electronic devices
in the courtroom and in the courthouse.
The proposed rule suggests a number of
updates.
Because more people bring a camera to
court, the Committee’s proposed rule is not
limited to news media, but would allow, and
would require, any member of the public to
submit a request to cover a court proceeding. 7 The proposed rule adds a new factor
for the judge’s consideration (“whether the
