Regulating Cell Phones in the Courtroom

By Kent Markgraf – January 9, 2012

Many courtrooms have a sign at the entrance of the court complex or posted in the courtroom that prohibits cell phones, or at least advises all those in attendance to turn their phones off. But does anyone actually comply? In reality, the signs seem to serve as a general reminder to put your phone on vibrate or silent mode. And despite the best efforts of court officials to enforce a “no cell phone” policy, lawyers and members of the audience can often be seen texting on their cell phones or using them for other purposes, such as reading emails, perusing the Internet, or even playing games.

A Derailed Summation
A perfect example of the cell phone’s ability to derail a proceeding occurred this past summer during a criminal trial. I was in attendance, and the defense counsel had just begun his summation. Approximately 10 minutes into the summation, the cell phone of a lawyer who was in the audience started to ring. The ringtone was an infamous musical Internet meme (“Peanut Butter Jelly Time,” for those who know it). The lawyer jumped up and began panicking, furiously smashing his hands at his pockets, hoping he would manage to hit a button that would temporarily silence the ring. After this effort proved to be fruitless, he nervously glanced up at the judge, flush with embarrassment. Then he turned around quickly, hunched over, and ran at full speed out of the crowded courtroom.

The entire event lasted approximately 20 seconds. The judge apologized to the jury and the defense counsel, and then the defense counsel continued with his summation. While everyone in the courtroom—including myself—exerted considerable effort to choke back laughter, there were at least a few jury and audience members who couldn’t resist a slight giggle.

The defendant was on trial for rape.

The victim’s family was present at the time, and the outrage was evident on their faces. The outburst undoubtedly affected the solemnity of the defense counsel’s statements and may have affected the jurors’ attitudes. The event clearly changed the atmosphere of the courtroom, and it is possible that the chance for justice may have been affected.

Although the real-life example above is somewhat extreme, situations such as this occur quite regularly in courtrooms around the country. Cell phones disrupt the sanctity of the courtroom. Considerations and distractions beyond the court record can affect a juror’s mind, and there is nothing more distracting in a courtroom than the ring of a cell phone.

Cell Phone Countermeasures
Oftentimes, the only measure taken by court officials to prevent cell phones from ringing in the courtroom is the placement of signs encouraging individuals to turn off their cell phones or to silence them. The major problem with this policy is that people have become more attached to their cell phones. Cell phones are currently viewed as an essential item to have on one’s person, much like keys or a wallet. Cell phones even seem to have replaced wristwatches as the most common method for people to keep time. Thus, such signs are not likely to deter people from leaving their cell phone on because they would rather take the risk of the cell phone ringing or vibrating during court proceedings than to miss an “important” phone call or text message.

Conversely, in other jurisdictions, some courts have imposed a blanket policy of prohibiting all cell phones in the court complex. This is a much more manageable policy, but only if there are procedures in place and the right equipment is available. To start, the court complex would need to have a metal detector at the entrance so that cell phones could be identified. There must also be some type of penalty (possibly a fine or confiscation) for bringing a cell phone into the courtroom. The chief obstacle to such a policy would be that cell phones are a primary communication tool for most people. Lawyers may need to contact clients, victims, and witnesses, depending on the proceedings. To many people, an outright ban on cell phones would be an infringement on their autonomy. Not only would many people oppose such a policy, but they also will likely attempt to actively bypass or avoid it if given the opportunity.

Approaches by Jurisdiction
Courthouses in New Castle County, Delaware, ban the use of cell phones but provide exceptions for judicial officers, state employees, attorneys showing identification, law enforcement, and maintenance personnel. With such a long exception list, this policy only protects against the irresponsible use of cell phones by laypeople and is therefore ineffective. Lawyers are just as prone as laypeople to forget to turn off or silence their cell phones, especially when they are in a rush or are focused on other matters.

Other states, such as Florida, have a variation of this strict policy. In Florida, all cell phones are banned in the court room, including those belonging to court staff, attorneys, and prosecutors. All are required to place cell phones in secure lockers if they bring them into the building. Thus, for example, if an attorney needs to make a call, he or she can retrieve the phone from the locker and make the call outside or in a designated area. This seems to be a reasonable policy, but the overarching problem still remains: Cell phone owners want their cell phone on them at all times.

Actively Blocking Cell Phone Service
Another practical solution to the varying concerns of the court and individuals is to block cell phone service. Active mobile phone jamming technology, however, is currently against the law. Active mobile phone jammers block cell phone reception in a given area. In the United States, the Communications Act of 1934 prohibits people from "willfully or maliciously interfering with the radio communications of any station licensed or authorized" to operate. Additionally, the "manufacture, importation, sale or offer for sale, including advertising, of devices designed to block or jam wireless transmissions is prohibited" as well. Because private telecommunications companies have purchased the rights to the radio spectrum, jamming the spectrum is akin to stealing the property the company has purchased.

The Federal Communications Commission (FCC) is charged with enforcing jamming laws. However, the FCC has not yet prosecuted any parties for cell phone jamming. Under the U.S. rules, fines for a first offense ca­n be as high as $11,000 for each violation and/or imprisonment for up to one year. The device may also be seized and forfeited by the government. Additionally, while it is possible that the Homeland Security Act of 2002 could be interpreted to override the Communications Act of 1934 (and thus allow for the use of mobile phone jammers for the purpose of information security), no court has ruled on this matter as yet.

Active mobile phone jammers would solve the problem because they would prevent the majority of cell phone disruptions in the courtroom without infringing on the autonomy of an individual by forcing him or her to lock up his or her cell phone in a locker, confiscating a found cell phone, or otherwise prohibiting cell phones in a court complex. Further, it does not rely on the memory of the individual to silence the phone. If, however, the federal government one day passes a resolution or a court renders a decision allowing the use of mobile phone jammers in court complexes via the Homeland Security Act of 2002, this could create a slippery slope, and the permissible use of mobile phone jammers may expand to an unintended level.

Passive Blocking and Detection
An alternative to a court’s use of active mobile phone jammers are passive attempts at blocking cell phone service. This method entails the use of wallpaper or building materials with embedded metal fragments to prevent the passage of cell signals from reaching into or out of the courtroom. Other buildings have designs that block radio signals due to thick concrete walls or a steel frame. However, this measure seems extremely impractical considering the size and number of courtrooms in the United States, and it would likely be cost prohibitive.

Cell phone detectors are also available and can indicate the presence of a cell phone signal and can potentially even locate the source. These have been used in hospitals where cell phone signals could interfere with sensitive medical equipment. When a signal is detected, the cell phone user could have his or hercell phone confiscated and then be penalized appropriately. A practical concern with the use of cell phone detectors would be that such technology can only detect active calls and would be a reactive, rather than preventive, measure.

Conclusion
Cell phones are a nuisance in the courtroom that must be dealt with before any more damage is done. It is entirely possible that the outcomes of cases have been affected by a cell phone distraction. Although jurisdictions have experimented with various policies, the issue needs to be explored on a much deeper level to balance the sanctity of the courtroom, autonomy of the individual, and costs associated with removing these distractions from the equation.

In the interim, you should probably change your ringtone to something other than “Peanut Butter Jelly Time.”

Keywords: cell phone, courtroom, mobile phone, cell phone jammer, smart phone, cell phone detector

Kent Markgraf attends Brooklyn Law School and is a 2012 J.D. candidate.

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