Stuck in court but want to use your tablet to respond to a client e-mail? Waiting for your case to be called and want to send a tweet from your phone? Is this sort of conduct permissible in the courtroom? Nowadays, it is anyone’s guess. Smartphones and tablets have become indispensable in the legal world, but the law regarding electronic communications sent from the courtroom is still in flux. The New Jersey Supreme Court’s proposed Guidelines on Electronic Devices in the Courtroom, which have yet to take effect, aim to provide some guidance in this realm. Now, if you want to scroll and tap on your mobile device in the courtroom, keep these new rules in mind.
The updated guidelines were promulgated due to advances in technology, including portable devices capable of recording and transmitting images directly from the courtroom, as well as the ever-expanding and malleable definition of “journalist” in the electronic age. The proposed rules would replace the 2003 guidelines, which pertained only to cameras in the courtroom and “bona fide media outlets”, and now reflect the increasing prevalence of smart phones, tablets, and other similar devices used to disseminate news.
Now, instead of determining who qualifies as a media representative, judges need only enforce how devices are used in and around the courtroom. Accordingly, the rules are the same for everyone who enters the court – reporters, spectators, and even attorneys. Anyone who violates the guidelines could face contempt of court.
Use of Devices
“Electronic device” is broadly defined as any device, including portable ones and those now in existence or “later to be developed,” with “the capability to transmit, broadcast, record and/or take photographs.”
The rules regarding the use of such devices differ according to the location of the user. Generally, use outside the courthouse is unrestricted. Courthouse visitors in hallways and other common areas are free to possess and use the devices for any purpose other than taking photographs, or recording or broadcasting video or sound. Significantly, the use of such devices inside the courtroom requires a written agreement, renewed annually. Once the agreement is in place, individuals may use an electronic device inside a courtroom to “silently take notes and/or transcribe and receive communications and information, without obtaining prior authorization from the court.”
Judges may override these agreements if the use of a device “interferes with the administration of justice, poses a threat to safety or security, or compromises the integrity of the proceedings.”
The directive is unclear about whether email may be sent and received in the courtroom. Sending e-mails is likely fair game, as long as they are not widely distributed “blasts” about what is happening in the courtroom and do not contain any photos or recordings taken there, as this may violate the broadcasting and recording rules.
Recording & Broadcasting
Additional permission is required to record and broadcast court proceedings. In addition to signing the annual agreement, those seeking to record and broadcast must also submit a separate form identifying the matter they want to cover and indicating whether they seek permission for a specific proceeding on a given date, or permission for all proceedings in that case open to the public.
The guidelines also dictate how recording and broadcasting is to be done. For example, “distracting sound or light” is prohibited, restrictions are imposed on when and where equipment can be placed, and those doing the recording or broadcasting may not move around. Still photographs and silent video of conversations between attorneys and clients are allowed, but sound recording or transmissions are not.
Judges may bar recording and broadcasting in their courtrooms and can also rescind or modify previously granted permission.
The proposed rules recognize the need for electronic devices in the courtroom and acknowledge the changing ways in which news is gathered and disseminated, while still affording trial judges discretion to control their courtrooms and maintaining fairness, efficiency and decorum. Stay tuned to see if other jurisdictions follow suit.