57 Wayne L. Rev. 291 - Ijury - The Emerging Role of Electronic Communication Devices in the Courtroom - Michael R. Kon

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291

IJURY: THE EMERGING ROLE OF ELECTRONIC

COMMUNICATION DEVICES IN THE COURTROOM

I. INTRODUCTION

The courts and often many judges have made no secret of their

discontent with the Internet, particularly with regard to its impact on the

legal system and trials. Courts have implicitly questioned the relevance

of information obtained from the Internet,1

and have explicitly stated that

while “some look to the Internet as an innovative vehicle for

communication, the Court continues to warily and wearily view it largely

as one large catalyst for rumor, innuendo, and misinformation.”2

This

view may be a result of many judges being from the “old school,” that is,

that they either lack an understanding of modern technology, or the

desire to deal with such technology in their courtrooms.3

In response to this unique and emerging problem, Michigan courts

have adopted two new court rules that look to control access to the

Internet through the use of electronic devices in the courtroom. Michigan

Court Rule 8.115 states that electronic devices may not be used to take

pictures in the courtroom, and that the chief judge may regulate the use

of cellular phones and electronic devices in the respective courts.

4

Michigan Court Rule 2.511 is more narrowly tailored to instruct jurors

that they may not use electronic devices to obtain information about the

case at hand, or any parties to the case.5

1. St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 774 (S.D. Tex.1999) (stating there is a presumption that information provided by the Internet is

“inherently untrustworthy”).

While these rules seem well-

intentioned, and good preliminary steps towards an effective policy of

court maintenance, it is possible that they suffer fatal flaws in the form of

being overly general and being administratively toothless. The MichiganCourt Rules, as currently adopted, are insufficiently designed to handle

the complex and rapidly changing role of handheld electronic devices in

the courtroom. It is likely that these rules will either have to be amended,

perhaps to a stricter form to ensure compliance, or that the courts will

2. Id .3. Tresa Baldas, For Jurors in Michigan, No Tweeting (or Texting, or Googling)

Allowed, N AT ’ L L AW J. (2009), available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202431952628&slreturn=1&hbxlogi

n=1 (quoting Charles Koop, prosecuting attorney in Antrim County, Michigan who stated“[J]udges of an older age may not be in tune as much as younger judges as to what’sgoing on out there”).

4. MICH. CT. R. 8.115(C)(2).5. MICH .CT. R. 2.511(H)(2)(c)-(d).



292 THE WAYNE LAW REVIEW [Vol. 57: 291

spend a significant amount of time litigating the details and

consequences of their application.

This Note will examine the role of electronic devices in thecourtroom, with respect to their relation to the court’s rules of procedure

and evidence. Moreover, a discussion of the pertinent case law regarding

many of the problems that have already arisen in this area will reveal the

need for stronger reform of the Michigan rules. That is, while the

implementation of these rules in Michigan is fairly recent, 6

II. BACKGROUND

the issue of

electronic devices in the courtroom has been a heated topic across the

nation for several years. Finally, the discussion will conclude with

proposed alternatives to the Michigan rules and a discussion of whether

there are instances in which the use of electronic devices by particular

individuals in the courtroom may be acceptable, or even desirable.

Early legal history indicates that there was a time when it was not

only preferable that jurors have a great deal of personal knowledge about

a case, but that it was actually required.7

However, this concept, like so

many others in the law, has changed with the expansion of society, 8

evolution in concepts of justice, and more recently, the rapid

advancement of technology. The clearest illustration of this

transformation is demonstrated in the language of the Fifth and Sixth

Amendments to the United States Constitution.9

The Fifth Amendment

(and subsequently the Fourteenth Amendment) articulates that

individuals shall be afforded due process of law,10

which courts have

interpreted to include “a fair trial in a fair tribunal.”

11

6. The two Michigan Court Rules at issue were adopted on September 1, 2009. SeeMICH. CT. R. 8.115; MICH. CT. R. 2.511.

Moreover, the

7. VALERIE P. HANS & NEIL VIDMAR, JUDGING THE JURY 27-28 (1986) (recountingthat jurors transitioned from providers of fact to finders of fact). See also NANCY S.

MARDER, THE JURY PROCESS 24-25 (2005) (explaining that the increasing tendency toappoint judges from the legal and professional classes, along with the recognition that

judges now had “special knowledge” of the law that lay citizens lacked, led to a transferof authority over trials, reducing the power of juries, and increasing the discretion of

judges).8. Newton N. Minow & Fred H. Cate, Who is an Impartial Juror in the Age of Mass

Media?, 40 AM. U. L. REV. 631, 638 (1991) (stating that, “[w]ith the growth of modernsociety and urban populations, the judicial system evolved so that it no longer required

actual knowledge by jurors”).9. U.S. CONST. amend. V.; U.S. CONST. amend. VI.

10. U.S. CONST. amend. V.; U.S. CONST. amend. XIV.11. In re Murchison, 349 U.S. 133, 136 (1955) (articulating that “[a] fair trial in a fair

tribunal is a basic requirement of due process”).



2011] IJURY: ELECTRONIC DEVICES IN THE COURTROOM 293

Sixth Amendment builds on this concept by adding that defendants in

criminal trials are entitled to an impartial jury.12

Of course, impartiality

is a somewhat amorphous standard, and has been characterized in amyriad of different ways by the Supreme Court.

13Yet, as evidenced by

the threshold a juror must meet,14 the question of impartiality does not

concern the juror’s knowledge in general. That is, the court does not

view an impartial juror as one that is ignorant of the situation.15

Rather,

the court only seeks to limit the knowledge the juror uses in decision-

making.16

A. The Federal Rules of Civil Procedure: The Beginning of the FilteringProcess

In pursuit of the aforementioned goal, the legal system has attempted

to design a process of procedure and admissibility to control theinformation available to jurors at trial. Long before the jury is exposed to

evidence in court, even before the evidence may be deemed admissible in

court, it must first be discoverable under local rules, or the Federal Rules

of Civil Procedure. The Rules vest courts with authority to determine the

scope and limits of discovery.17 At their inception in 1938, the Rules

initially offered lawyers and litigants a great deal of freedom to pursue

evidence that supported the theory of the case.18

However, this also

meant that the parties were “free to manipulate the process without

judicial oversight.”19

12. U.S. CONST. amend. VI. (emphasis added). See also 28 U.S.C. § 1866(c)(2)(2009) (stating that a juror may be disqualified from jury service if he or she is unable tobe impartial).

Therefore, the 1993 and 2000 amendments to the

13. Minow & Cate, supra note 8 (recounting the various differing conceptions of howindifferent an impartial juror should be and examining whether impartiality is attainedthrough lack of knowledge of the facts, or lack of an opinion about those facts).

14. 28 U.S.C. § 1865(c) (2009) (stating that to be qualified as a juror, one must only

be a United States citizen, proficient and literate in English, mentally capable of performing jury service, and must not have the specified criminal history).

15. Minow & Cate, supra note 8, at 641 (commenting on the Supreme Court’sopinion in Irvin v. Dowd that stated, “[i]t is not required . . . that the jurors be totally

ignorant of the facts and issues involved”). See Irvin v. Dowd, 366 U.S. 717, 722 (1961).16. See generally Anita Ramasastry, Why Courts Need to Ban Jurors’ Electronic

Communications Devices, FINDLAW.COM (Aug. 11, 2009),http://writ.news.findlaw.com/ramasastry/20090811.html.

17. FED. R. CIV. P. 26(b)(1)-(2).18. Morgan Cloud, Privileges Lost? Privileges Retained?, 69 TENN. L. REV. 65, 67

(2001).

19. Id . (explaining that the only time the broad discretion of the parties was regulated,occurred when one party asked the court to intervene and rule on the issue).




Rules were intended to limit the discretion of the parties,20

While parties are now generally free to “obtain discovery regardingany non-privileged matter that is relevant to any party’s claim,” the courtultimately has the ability to limit such discovery.

and impose

stricter control on the proposed evidence being considered.

21 That is, the courts

exercise control over the parties involved in the interest of providing “a

mechanism for making relevant information available to the litigants.”22

Consequently, these statements show how vital it is to the integrity of a

case that procedure be followed.23

In fact, lawyers themselves, often

viewed as proponents of maximizing discovery, have regularly expressed

their desire for the court to supervise the discovery process to avoid

abuse.24

B. The Rules of Evidence as a Second Line of Defense

Therefore, it is important, when discussing the role of a juror in

evaluating evidence, to view that role through the lens of these restrictive

rules. Progressing in this line of thought, it is logical to assume that if the

court subjects the parties to such stringent supervision in discovery of evidence, then the jury should at least be subject to those same limits,

namely, obtaining permission by the court to introduce evidence.

Perhaps even more restrictive and complex, the Federal Rules of

Evidence (mirrored in the Michigan Rules of Evidence) provide another

screening process for evidence presented in court. While public policy

and concern for the scope and length of a trial were main interests in the

development of evidence law, a “mistrust of juries is the single

overriding reason for the law of evidence.”25

20. Id . at 68 (continuing to emphasize that “these various changes to the FederalRules would represent an unmistakable movement away from a system in which

attorneys independently manage discovery and toward a discovery system in which theirautonomy is restricted by written rule or judicial order”).

The jury is placed in a more

21. FED. R. CIV. P. 26(b)(1).22. FED. R. CIV. P. 26 advisory committee’s note (concerning the use of methods of

discovery as “tactical weapons rather than to expose the facts and illuminate the issues”).23. Ramasastry, supra note 16 (arguing for a total ban on cell phones for jurors, as

access to cell phones and the Internet is “compromising the trials’ integrity, andpotentially tainting the judicial process”).

24. FED. R. CIV. P. 26(b)(1) advisory committee’s note (explaining that the advisorycommittee “has been informed repeatedly by lawyers that involvement of the court inmanaging discovery is an important method of controlling problems of inappropriatelybroad discovery”).

25. CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE UNDER THE

RULES 1-2 (6th ed. 2008) (suggesting that other reasons for evidence law are to guaranteereliable fact-finding, and to enforce substantive policies, such as controlling the burden of

persuasion among litigants). But see Jury Service: Is Fulfilling Your Civic Duty a Trial?,HARRIS INTERACTIVE, 5 (July 2004), http://www.abanow.org/wordpress/wp-




receptive, rather than active, role, in evaluating the admissibility of

evidence due to the propensity of laypersons to give improper weight to

certain information, or to use such information punitively.26

In every trial, the first issue to be established when considering a

piece of evidence for admission is whether it is material to the case.

Therefore, itseems fitting to discuss the goal of evidence law and how it shapes the

role of the jury in the trial.

27It

is particularly noteworthy to the overall goal of this analysis to mention

that the court, and not the jury, makes this preliminary determination.28

Specifically, it is the duty of the court to determine the qualifications of a

witness, the application of privilege, and the admissibility of evidence.29

The critical distinction made in this rule is that jurors receive the

question of relevance only when “relevancy of evidence depends upon

the fulfillment of a condition of fact.”30

Essentially, “when different

answers are possible the jury decides.”31

Yet, it is still within theprovidence of the judge to determine what conclusions a reasonable juror

may reach.32

The concerns regarding the mistrust of juries, and the subsequent

confinement of their responsibilities as fact finders, are addressed

regularly throughout the Federal Rules of Evidence. For example, under

Rule 105, the court must make a distinction between evidence that is

admissible by one party but not the other.

33

content/files_flutter/1272052715_20_1_1_7_Upload_File.pdf (citing a survey which

stated that 75 percent of Americans would rather have their case tried by a jury than a judge) [hereinafter Jury Service].

In doing so, the court will not

only “restrict the evidence to its proper scope” but also “instruct the jury

26. MUELLER & KIRKPATRICK , supra note 25, at 1-2. See also Michelle Pan,

Comment and Casenote, Strategy or Stratagem: The Use of Improper PsychologicalTactics by Trial Attorneys to Persuade Jurors, 74 U. CIN. L. REV. 259, 270-72 (2005)(arguing that attorneys regularly prey on laypersons on juries by using improperpsychological tactics to subconsciously confuse the jurors about the issues.) The same

tactics are used to prejudice the jurors’ opinions of witnesses, in the hopes of obtaining afavorable verdict based on non-legal considerations.

27. Jason M. Brauser, Intrinsic or Extrinsic?: The Confusing Distinction Between Inextricably Intertwined Evidence and Other Crimes Evidence Under Rule 404(b), 88

NW. U. L. REV. 1582, 1585 (1994) (providing brief historical background on thedevelopment of evidence law and a step by step discussion of evaluating evidence underRule 404(b)).

28. FED. R. EVID. 104(a).

29. Id .30. FED. R. EVID. 104(b).31. MUELLER & KIRKPATRICK, supra note 25, at 39.32. Id . at 40.33. FED. R. EVID. 105.




accordingly.”34

This illustrates the main concern of the following

analysis, specifically, the concept that while jurors, as laypersons, may

view evidence they have personally obtained (whether by electronicmeans or third parties) as either “in or out,” the court is able to take amore precise approach, selecting parts of the evidence that may be used

to support specific claims.35

Another example of the importance of the court’s discretion over the

evidence the jury hears is codified in Federal Rule of Evidence 403.

36

While conventional wisdom would suggest that all evidence relevant to

the case should be admitted, the Rules take a different approach in the

interest of protecting litigants.37

Rule 403 says that a court may exclude

evidence, even though it is relevant to the case, if the unfair prejudice

done to one party outweighs the probative value of that evidence.38 This

rule looks to admit evidence that may tend to prove or disprove a fact,

while at the same time excluding the admission of evidence that ispresented only to inflame or confuse the jury.

39Rule 403 also speaks

directly to the previously mentioned distrust of juries, as it gives the

court authority to exclude evidence that may mislead the jury, or confuse

the issues of the case.40

34. Id . (emphasis added).

Thus, Rule 403 appears to be the court’s

recognition of, and attempted solution to, the problem of jurors being

35. Charles M. Cork, A Better Orientation for Jury Instructions, 54 MERCER L. REV.

1, 2 (2002) (arguing that often, even after extensive jury instructions are given, the

directions “will fail to enable jurors to understand the contours of the applicable lawsimply because those contours cannot be learned by ordinary citizens throughcramming.” The author points to the complexity of the law and competing goals of jury

instruction as being the problem, stating that often things that are “sensible to judges andlawyers, who have had years to learn the contours of the law, will remain opaque to

jurors without similar training and experience.”).36. FED. R. EVID. 403.

37. Franklin Strier, Making Jury Trials More Truthful, 30 U.C. DAVIS L. REV. 95, 112(1996) (arguing that “[j]ury factfinding under the adversary system is as much theproduct of evidence not heard as of evidence which is”).

38. FED. R. EVID. 403. See also FED. R. EVID. 403 advisory committee’s note

(clarifying that “unfair prejudice” refers to a proposed piece of evidence’s ability tosolicit an emotional or other response, leading to an improper decision based upon thatresponse).

39. See State v. Chapple, 660 P.2d 1208 (Ariz. 1983) (holding that gruesome

photographs of a murder were relevant to the case, as they established the victim’sidentity and the wounds consistent with a murder; however, the court ruled that thephotos should have been excluded because they did not resolve any item actually in

dispute, and only served to fuel the emotions of the jury).40. FED. R. EVID. 403.




inundated by the “creative” theories of lawyers attempting to influence

them with everything but the facts.41

Often, even more than the legalese used by lawyers and judges, jurors have difficulty sorting out the testimony of witnesses and expertsin a trial. This is perhaps the area most susceptible to damage by jurors

disregarding the formal rules and performing their own e-research.

Judges are authorized to make the preliminary decisions about a witness’

qualifications.

42 Primary among those qualifications is that the witness

must have personal knowledge of the event.43

However, these rules are

completely stripped of their purpose when jurors are able to obtain

information online during deliberations. It is possible that jurors believe

they are reading an unbiased account from an expert,44

rather than

listening to a biased expert witness who is being paid by one side or the

other. However, such reliance only damages the integrity of the trial and

“has devalued expertise across the board.”45

Moreover, in the context of a criminal trial, allowing unauthorized sources to provide information

means that defendants will be denied the Sixth Amendment right to

confront and question those offering testimony against them.46 Reading

these rules together, one realizes that

However, to establish the court as the gatekeeper of information for

the jury does not in any way diminish the role of the jury, but rather

allows the court to assign the jury its own responsibilities.

Notwithstanding the limitations of the previous rules, it is important to

when jurors act on their own

curiosity, through the use of electronic devices or extraneous research,

the court is stripped of its authority, and the litigants are robbed of their

substantive rights.

41. See generally Strier, supra note 37, at 117 (explaining how lawyers will tone

down their theatrical demeanor and case presentation style to a simpler and more directmethod when litigating in a bench trial. Moreover, the author argues that a lawyer’s“overriding allegiance is to the client, not to the truth. In pursuing the role of zealousadvocate, it remains unclear to what lengths the attorney may go in distorting or hiding

the truth.”).42. FED. R. EVID. 104(a).43. FED. R. EVID. 602 (stating that a witness may not offer testimony about the matter

unless that witness is able to support the claim of possessing personal knowledge).

44. Renee Loth, Mistrial by Google, BOSTON GLOBE (Nov. 6, 2009), available at http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2009/11/06/mistrial_by_google/.

45. Id .

46. U.S. CONST. amend. VI. See also Editorial, The Right to Confront Witnesses, N.Y. TIMES (Jan. 10, 2010), available at http://www.nytimes.com/2010/01/11/opinion/11mon2.html (recounting a pending court

appeal where the defendant wishes to cross-examine, as witnesses, the lab analysts whoperformed tests on the drugs at issue in the case).




recognize that jurors have several crucial obligations beyond returning

the verdict. Coinciding with the discussion above, perhaps the most

important obligation for a juror is to abstain from considering evidencenot introduced in court.47

Also, under the court’s direction, a juror has aresponsibility to refrain from discussing the facts or evidence of a case

with an outside party.48

In fact, there is a significant amount of case law

holding that jurors should not even discuss evidence in the trial with each

other until all of the evidence has been presented. 49 The underlying

rationale behind each of these rules is to ensure that each party has a fair

opportunity to have the evidence heard and weighed in a uniform

manner, protected and guided by the court’s standards.50

III. ANALYSIS

Michigan Court Rule 2.511 looks to serve as a pre-emptive measureagainst jurors using electronic communication devices to compromise a

trial.51

While the rule begins with a strong and strict line of instruction to

the jury, it reduces its own effectiveness by conditioning its application.

The rule states that jurors may not “use a computer, cellular phone, or

other electronic device with communication capabilities while in

attendance at trial or during deliberation.”52

47. MICH. CT. R. 2.511(H)(2)(d). See also United States v. Resko, 3 F.3d 684, 690 (3dCir. 1993) (acknowledging that “[i]t has long been recognized that when jurors areinfluenced by the media and other publicity, or when they engage in communications

with third parties, these extra-record influences pose a substantial threat to the fairness of

the criminal proceeding because the extraneous information completely evades thesafeguards of the judicial process”).

This statement is

unambiguous, and would seem to provide for straightforward

48. MICH. CT. R 2.511(H)(2)(a). See generally STEPHEN C. YEAZELL, CIVIL

PROCEDURE 599-600 (7th ed. 2008).49. G. Thomas Munsterman, Should Jurors Be Permitted to Discuss the Evidence

Prior to Deliberations?, NAT’L CTR. FOR STATE CTS., 1 (2002), available at http://www.ncsconline.org/wc/publications/Res_Juries_JuryNewsDiscussEvidencePub.p

df. See also Winebrenner v. United States, 147 F.2d 322 (8th Cir. 1945) (discussingvarious considerations on how a juror’s opinion may be biased by discussing the trialprior to hearing opposing counsel, and that the jurors’ discussions may be flawed as theyhave not heard the evidence in its entirety, along with any limiting instructions given by

the court). But see Resko, supra note 47, at 690 (stating that “there is a clear doctrinaldistinction between evidence of improper intra-jury communications and extra-juryinfluences. It is well-established that the latter pose a far more serious threat to thedefendant’s right to be tried by an impartial jury.”).

50. Eric P. Robinson, Web of Justice?: Jurors’ Use of Social Media, CITIZEN MEDIA

LAW PROJECT (May 22, 2009), http://www.citmedialaw.org/blog/2009/web-justice- jurors-use-social-media.

51. MICH. CT. R. 2.511(H)(2)(c).52. Id .




enforcement and adherence. However, the rule quickly retreats from its

staunch position by stating, “These devices may be used during breaks or

recesses but may not be used to obtain or disclose information prohibitedin subsection (d).”53

A. Optimism in Jury Instruction

This latter portion frustrates the purpose of theformer by increasing the risk of noncompliance.

The courts have expressed that they must already depend on the

“good faith” of jurors to refrain from obtaining information about the

case while they are not in court.54 Yet, with nothing but a judge’s

warning to prevent them from doing so, jurors are almost entirely free to

go home and research issues about the case, with little chance of being

caught.55

Formerly, risk of intense juror research was typically limited to

television exposure or newspaper coverage of the trial. The threat of stumbling upon prejudicial information was lessened by the small

number of cases actually covered in the media. However, the range of

information now available on the Internet and the ease of obtaining the

information has created a unique conundrum for the courts. Therefore,

one might view the enacting of Michigan Court Rule 2.511 as an

opportunity to ensure compliance in an area where the court actually has

control over the jurors. However, even accepting the Supreme Court’s

concerns that the courts cannot protect jurors from every influence in

their deliberations,56

the current rule seems to be wasting the courts’

limited opportunity to guarantee the integrity of the trial.

The concerns being expressed, that jurors are deliberately using

electronic devices to obtain inadmissible or irrelevant evidence,

57

are notspeculative posturing, but are the result of several documented cases

involving these issues. In United States v. Fumo, the court was forced to

hear an appeal based partially on the grounds that one juror’s comments

on social networking sites such as Facebook and Twitter, were reported

in the news, and may have biased the other jurors.58

53. Id .

Moreover, even

54. Capitol Records, Inc. v. Alaujan, 593 F. Supp. 2d 319, 324 (D. Mass. 2009)

remanded by In re Sony BMG Music Entm’t, 564 F.3d 1 (1st Cir. 2009).55. Ramasastry, supra note 16.56. Smith v. Phillips, 455 U.S. 209, 217 (1982).57. John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. TIMES

(Mar. 17, 2009), available at http://www.nytimes.com/2009/03/18/us/18juries.html.58. See United States v. Fumo, 639 F. Supp. 2d 544, 555 (E.D. Penn. 2009)

(explaining that the court was able to dismiss these grounds for appeal because the juror’s

comments were “nothing more than harmless ramblings having no prejudicial effect.They were so vague as to be virtually meaningless.”).




harmless uses of electronic communication devices by jurors have led to

serious complications, such as the dismissal and replacement of a juror.59

Most importantly, it seems that incidents of jurors posting sensitiveor prejudicial information about a case online are becoming moreprevalent.60 These incidents not only cause the court significant hardship,

but also leave the potential for egregious errors. It can be conceded that a

court rule regarding cellular phones and PDAs may, at first glance, seem

trivial in nature. However, the severity of the cases impacted by

communication devices, including rape, burglary, and sexual assault,61

surely lend legitimacy to giving this issue serious consideration. That is,

the court is a unique entity precisely because of its rigorous standards of

privacy, and its ability to limit prejudicial information that may deprive

an individual of fair judgment.62 The courts have stated that a juror

“evades the safeguards of the judicial process” when the juror consults

with other parties or takes it upon himself or herself to performindependent research about the case.

63While cellular phones and other

electronic devices have become an essential part of everyday life, it

should not be presumed that the courts must accommodate these facets of

everyday life when jurors begin the critical process of deliberation.64

Although the regulation of electronic devices in MCR 2.511 applies

exclusively to jurors, Michigan Court Rule 8.115 is a similar regulation

B. Court Rules Go Beyond the Jury to Apply to All the Parties to theCase

65

59. See Mance v. State, No. 45A04-0806-PC-369, 2009 WL 81377, at *3 (Ind. App.Jan. 14, 2009) (discussing the dismissal of a juror from a case due to a phone call she hadplaced to her husband in the jury room, even though the call did not mention any details

of the case).60. See generally John G. Browning, Dangers of the Online Juror , IN CHAMBERS 11-

13 (2009), available at http://www.yourhonor.com/ic-online/PDFVersion/IC-Summer09-Printable.pdf (cataloguing cases where jurors have viewed information on the defendant’s

MySpace page, performed online research on the symptoms of medical conditions toverify the accuracy of expert testimony, “blogged” about jury deliberations on personalweb sites, and discovered previous cases and judgments against parties to the case). Seealso Baldas, supra note 3 (explaining how “[a] recent questionnaire sent to court

administrators across the country showed that many courts are addressing the problem of potential juror misconduct through hand-held devices”).

61. Browning, supra note 60.62. Ramasastry, supra note 16.

63. Resko, 3 F.3d at 690.64. See Pagan v. State, 809 N.E.2d 915, 922 (Ind. Ct. App. 2004).65. MICH. CT. R. 8.115(C)(2) (stating that the “chief judge may establish a policy

regarding the use of cell phones or other portable electronic communication deviceswithin the court”).




that will likely have a broader and more significant impact on all parties

to the case, including judges and lawyers in the court system. The

incidences of electronic devices being used to prejudice a trial are surelynot limited to the jury, and, therefore, neither should the regulations.

1. Participants in the Litigation

While the parties to the case are normally the individuals likely to be

protected by rules against use of electronic devices, it has been the case

that the parties themselves have shown a certain blindness to the order of

the courtroom. One example of this situation occurred in Florida’s

Miami-Dade Circuit Court, where a mistrial was declared because the

witness currently on the stand was “texting” with the plaintiff.66

The

outraged judge not only had to explain to the plaintiff that he was

violating one of the most basic rules of order in the court, but also had to repeat and rephrase the concept, as the plaintiff still did not understand.67

Professor Robert Jarvis commented on the trial, arguing for a complete

ban of electronic devices, as they present “too much potential for

disruption” in the courtroom.68

It is possible, by exercising the full

authority granted under the current Michigan Court Rule, that electronics

may be completely banned from the courtroom. 69 However, this power

is, once again, somewhat diluted, as it is not mandated but rather at the

discretion of the chief judge.70

However, the problems presented by electronic devices in the

courtroom are not isolated to the actual information being exchanged. It

has been suggested that even if a party is not answering or using an

electronic device, the “subtle or not so subtle pressure” of simplyaccumulating missed calls or messages may lead parties to amend their

conduct out of concern for their professional or personal lives.

71A

shocking example of such behavior occurred in Massachusetts, during

the trial of an alleged rapist, where a juror e-mailed her thoughts about

the trial saying “just say he’s guilty and lets [sic] get on with our lives!”72

66. Alana Roberts, Mistrial Declared Over Executive’s Texting From the WitnessStand, DAILY BUS. REV. (May 15, 2009), available at http://www.law.com/jsp/article.jsp?id=1202430721257.

The juror’s comments were nothing short of outrageous, as they came

67. Id .68. Id .

69. MICH. CT. R. 8.115(C)(2).70. Id .71. Joel M. Schumm, Survey: Criminal Law and Procedure: Recent Developments in

Indiana Criminal Law and Procedure, 38 IND. L. REV. 999, 1012 (2005).72. Loth, supra note 44.




only halfway through the prosecutor’s case,73

Moreover, even if an individual is only commenting on his or herfeelings immediately before announcing a verdict that has already been

deliberated, it can create an uncomfortable atmosphere of suspicion. One

example of such behavior occurred in Macomb County Circuit Court in

August 2010.

and the negative impact of

the comments were magnified to a much larger extent due to her ability

to project them to individuals outside the courtroom.

74 The juror disregarded the most basic of jury instructions:

to wait to make a decision until the presentation of evidence was over.75

Instead, in between the days of the trial, the juror posted a message on

Facebook stating, “gonna be fun to tell the defendant they’re

GUILTY.”76

The judge presiding at trial rightfully made an example of

the young juror, requiring her to pay a fine, and perhaps more

appropriately, to also write an essay on the Sixth Amendment.77

Another dramatic example of this predicament occurred in 2009 in

Arkansas, where a juror had posted an entry on Twitter stating that he

was about to give away twelve million dollars of the defendant

company’s money.

Although the juror’s behavior did not disturb the verdict at trial, thisscenario demonstrates the issues Michigan courts will almost certainly

have to address again in the future.

78The attorney for the defendant company argued in

his motion that the juror’s posts proved he “was predisposed toward

giving a verdict that would impress his audience.” 79 Moreover, despite

the fact that the juror had been informed of his wrongdoing, he still

displayed little concern for the severity of his actions as, “[o]n the day he

was supposed to testify about his online activities, Powell posted the

message ‘Well, I’m off to see a judge. Hope they don’t lock me under the jail.’”80 This attitude of conscious disregard of the law and civic duty is

not only becoming more widespread in other cases,81

73. Id .

but signals that

74. Christina Hall, Facebook Juror Gets Homework Assignment , DET. FREE PRESS,

Sept. 3, 2010, at A7.75. Id .76. Id .77. Id .78. Pamela Pengelley, Twittering Juror Has ‘Appeal’ of . . . $12.6M , RES IPSA

LOQUITUR (Mar. 25, 2009), http://canadianlaw.wordpress.com/2009/03/25/twittering- juror-has-appealof-126m/.

79. Id .

80. Browning, supra note 60.81. Schwartz, supra note 57 (explaining that at least eight jurors on a single jury in

Florida were found to be performing research on the Internet about the case currently

before them). Moreover, another juror in a separate trial admitted that, although she knewshe was not supposed to, she researched the parties anyway.




significant trouble is approaching for the legal system in the future. One

juror, after witnessing, but not reporting, another juror using Google

during a trial, accurately reflected this principle by commenting, “If everybody did the right thing, the trial, which took two days, would have

gone on for another bazillion years.”82 Therefore, the courts appear to be

approaching, or are already in a predicament where they must either

change the public’s attitude and understanding of the impact that

electronic devices can have on a trial, or resort to stricter regulations,

such as a total ban.83

2. Lack of Uniformity in the Legal Community ConcerningProposed Solutions and Treatment of Electronic Devices

Despite all the emerging controversies and appeals surrounding the

use of electronic devices in the courtroom, lawyers and legalprofessionals appear to be split in their opinions about how extensive

regulations governing these devices should be. Concern and frustration

about electronics have been expressed in varying forms from individuals

in the legal field, ranging from outright concessions that “technology has

far outpaced the court rules,”84 to acknowledgements that “enforcement

goes beyond what the judge can do . . . that ‘it’s up to Juror 11 to make

sure Juror 12 stays in line.’”85

On the one hand, critics have acknowledged that banning cellular

phones for non-legal individuals and jurors in the courtroom remains an

impractical solution because of family members, such as children, whomight rely on their parents always being in contact.

Yet, while identification of the problem is

widespread, agreement on a solution or uniform policy of treatment

remains a topic of fervent debate.

86Furthermore, some

have argued that the public at large views electronic devices “as essential

to their personal security” and thus disapprove of strict regulations on

their use.87

82. Id .

However, these arguments perhaps overlook the complex

legal mechanisms involved, and seem to ignore the reality that life

existed before our current electronic addictions.

83. See generally Ramasastry, supra note 16.84. Baldas, supra note 3.85. Schwartz, Google Mistrial, N.Y. TIMES UPFRONT (April 20, 2009), available at

http://teacher.scholastic.com/scholasticnews/indepth/upfront/features/index.asp?article=f 042009_iPhones.

86. Baldas, supra note 3.

87. Seth A. Northrop, Staying Connected in Court: The Status and Impact of Local Rules on Cell Phones and PDA Usage, 54-6 FED. LAW. 34 (July 2007).




Yet, in relation to the potential for frivolous mistrials, or conversely,

genuine prejudice leading to miscarriages of justice, how much harm is

really being done in asking jurors to relinquish their cellular phonesduring their service on a jury? As one author has suggested, “can’t jurors

be weaned from their cellphone dependencies for the few days it takes to

conduct most trials?”88

In fact, the length of time jurors serve averages

around four to five days in civil and criminal trials, respectively.89

It

would seem that the public’s argument, that cell phones are necessities

for jurors, is based more on inconvenience to and frustration of the

juror90

than actual impairment or damage. In contrast, the court’s

perspective may be stated in significantly more urgent terms, that

“searching the Web during trial jeopardizes the very foundations of the

judicial system.”91 Despite the annoyance of being out of contact for

hours at a time, surely most jurors can empathize with the idea that no

plaintiff wants her medical malpractice claims barred by WedMD, nordoes any criminal defendant wish to be convicted by Wikipedia. Of

course, even if the temptation of cell phone use is eliminated, jurors who

remain committed to disregarding their legal and civic duty are still free

to use traditional methods such as puzzles, letter writing,92

When analyzing the use of electronic devices in the courtroom by

those in the legal field, both professional and logistical concerns must be

taken into account, along with the previously mentioned legal issues.

With regard to legal professionals, some critics have argued against

using rules similar to MCR 8.115 to their furthest extent, as “[s]uch

restrictions hamper attorneys’ ability to stay in contact with their offices,

calendars, or even clients or potential witnesses.”

or

daydreaming.

93

It is also worth notingthat Michigan Court Rule 2.511, affecting jurors’ use of devices, was

heavily advocated for by the Prosecuting Attorneys Association of

Michigan.94

88. Loth, supra note 44. See Jury Service, supra note 25 (stating that only 30 percent

of Americans summoned to jury service actually serve on trials).

However, extensive support for rules restricting an

attorney’s use of electronic devices remains a rarity.

89. D. Graham Burnett, A Juror’s Role, 14 EJOURNAL USA 7, 10 (July 2009),

available at http://www.america.gov/media/pdf/ejs/0709.pdf#popup (citing a survey doneby the National Center for State Courts).

90. Northrop, supra note 87.91. Loth, supra note 44.92. Id .93. Northrop, supra note 87.94. Baldas, supra note 3.




C. Electronic Devices and Extraneous Evidence as a Gateway Towards Mistrial and Appeals

There is no shortage of reasons for how and why litigants believe

they deserve a reversal or new trial.95

Therefore, it should come as no

surprise that jurors’ use of an electronic device during deliberation has

become the newest addition to that category,96

being affectionately

named “Google mistrials.”97 As previously mentioned, an attorney for a

defendant building company filed an appeal based the grounds that a

“Twittering” juror was improperly predisposed towards giving an award

against his clients.98 Greg Brown, the opposing attorney, referred to the

matter as “grasping at straws” and was confident that there was little

chance for a new trial.99

The current trend is for courts to establish and maintain a high

threshold for the evidence required to prove improper influence on the

jury, and consequently deny the majority of such appeals.

Yet, one cannot ignore the reality that with the

flick of a finger, a juror with a one-hundred dollar smartphone can put a

twelve million dollar judgment at risk.

100

95. YEAZELL, supra note 48, at 610 (listing circumstances under which an individualmay obtain a mistrial including: flawed procedure, flawed verdict, or factual error. Thesesituations often occur on behalf of the court when a party makes an impermissibleargument, the court admits inappropriate evidence, or when the jury is erroneously

instructed).

However,

96. Id. (listing reasons why a juror’s behavior may be the source of a new trial, suchas: a juror’s misbehavior, or when a juror ignores or does not understand the court’sinstructions on how to reach a verdict and what evidence may be considered). See also

Tim Weber, Dixon Mistrial Motions Don’t Hold Up, BALTIMORE SUN, (Dec. 12, 2009), available at http://articles.baltimoresun.com/2009-12-12/news/bal-ed.dixon12dec12_1_dixon-aide-mayor-dixon-ms-dixon (discussing motions filed for

appeal in the trial of Mayor Sheila Dixon, where five jurors had become Facebook friends, exchanging comments about how long the trial was taking and debating the guiltor innocence of the mayor. Even though the comments were public, with one comment

being made by a nonjuror, the allegations provided no concrete evidence as to whether ornot those comments affected deliberations.).

97. Loth, supra note 44.98. Pengelley, supra note 78.

99. Id. (explaining that “Arkansas law requires defendants to prove that outside

information entered the jury room and corrupted a verdict—not that information from the

jury room made its way out”).100. State v. Goupil, 908 A.2d 1256 (N.H. 2006) (holding that a juror’s blog comments

about having to listen to the “local riff-raff,” in regards to his jury duty service, were

unclear and did not prove that the juror was impartial or that the trial was unfair). Seealso State v. Falcone, 2008 WL 2222728 (Ariz. App. Div. 2, 2008) (holding that although

jurors had computers and cellular phones accessible during trial, and had asked specificquestions about the admissibility of appellant’s past criminal record, appellant failed toprove that they were actually aware of his other convictions; moreover, the court stated




there have been groundbreaking developments in the appeals process for

trials involving jurors who had used Internet research during

deliberations. In Wardlaw v. State, the appellate court reversed andremanded three assault convictions on the grounds that the defendant’s

right to an impartial jury had been violated by juror misconduct.101 The

violation consisted of one juror researching the medical condition of the

victim who was testifying.102

In another case, a first-degree murder

conviction was overturned and the defendant was given a new trial due to

a juror’s extraneous research.103

This time the research consisted of

looking up a single word on Wikipedia.104

Finally, and perhaps most

shockingly, a newspaper report from England recounts that in 2005 a

defendant was convicted of raping a minor; however, the conviction was

overturned after the court discovered Internet printouts in the jury

room.105

Subsequently, the defendant was acquitted at his retrial.106

there is a presumption that the jurors have followed the court’s instructions, and that the

defendant had not sufficiently rebutted the presumption); see also Ramasastry, supra note16 (discussing a Pennsylvania case in which a verdict was allowed to stand, but notwithout a stern warning from Justice Brent Dickson. “Allowing jurors to have cell phonesor other devices in court,” he wrote, is “‘fraught with significant potential problems

impacting the fair administration of justice.’”).

While the previous cases did not involve research done specifically from

101. Wardlaw v. State, 971 A.2d 331 (Md. App. 2007).102. Id . at 339 (commenting that the “juror’s Internet research of ODD, and her

subsequent reporting of her finding, rightly or wrongly, that lying is associated with thedisorder, constituted egregious misconduct.” The lower court had only provided curative instructions, rather than appropriately using voir dire to determine the juror’s impact on

others.).

103. Del Quentin Wilber, Social Networking Among Jurors is Trying Judge’s Patience,WASH. POST. (Jan. 9, 2010), available at http://www.washingtonpost.com/wp-dyn/content/article/2010/01/08/AR2010010803694.html.

104. Id. (stating that the juror researched the definition of the word “lividity,” a wordwhich presumably had a negligible impact on the trial, as it is not a term of art in anyfield. This is perhaps the strictest example of a court adhering to the warning given to

jurors.) See generally Andrea F. Siegel, Judges Confounded By Jury’s Access ToCyberspace, BALTIMORE SUN (Dec. 13, 2009), available at http://articles.baltimoresun.com/2009-12-13/news/bal-md.ar.tmi13dec13_1_deliberations-period-florida-drug-case-jurors (articulating theconcerns of some in the legal field who would like to see juror’s be held in contempt for

their misconduct, with punishment including jail time or fines). See also MICH. CT. R.8.115(A)(2) (stating that “[f]ailure to comply with this section or with the policyestablished by the chief judge may result in a fine, including confiscation of the device,incarceration, or both for contempt of court”).

105. Amelia Hill, Judges Are Resigned to Jurors Researching Their Trials Online,GUARDIAN.CO.UK (Oct. 4, 2010), available at http://www.guardian.co.uk/law/2010/oct/04/judges-resigned-jurors-online-

research?INTCMP=SRCH.106. Id .




a juror’s cellular phone, they most certainly signify that the precedent has

been set for the possibility that Internet research may be used to overturn

convictions.On a more pragmatic level, legal professionals are well aware of the

cost and time associated with retrying a case, not to mention the strain

such trials put on clients and the judicial system.107

In an effort to address

this issue, the California Superior Court in San Francisco has included a

specific warning in its jury questionnaire, stating that any use of Internet

communication is prohibited.108

Of course this rule was implemented in

response to perhaps one of largest blunders associated with jurors’ use of

electronic communications.109

Moreover, in Florida, judges may resort to

explicitly listing, in their jury instructions, actions prohibited during jury

service (tweeting, texting, posting, blogging, etc).110 Finally, in January

2010, the Judicial Conference of the United States published “Twitter

instructions” to assist federal judges in preempting any violations by jurors.

111

107. Loth, supra note 44 (explaining that the courts must evolve to address this issueor otherwise risk “gumming up the wheels of justice”).

Although addressing the issue of jurors’ using devices is one

crucial aspect of the problem, another controversial topic of discussion

centers on whether such rules should apply exclusively to jurors and

parties to the case, or to all individuals in the courthouse.

108. Eric P. Robinson, Michigan High Court Sends Message to Tweeters, CITIZEN

MEDIA LAW PROJECT (July 7, 2009), http://www.citmedialaw.org/blog/2009/michigan-

high-court-sends-message-tweeters (comparing the Michigan Court Rules to a new

strategy employed by the California Superior Court in San Francisco that explicitly andpre-emptively warns jurors that they may not use Internet sources, blogs, or post onTwitter). Instead of being administered when jurors are selected for a trial, this notice

appears in the jury questionnaire filled out by every prospective juror. This posting took effect on Jan 1, 2010.

109. Eric Sinrod, Jurors: Keep Your E-Fingers to Yourself , FINDLAW.COM (Sept. 15,2009), http://blogs.findlaw.com/technologist/2009/09/jurors-keep-your-e-fingers-to-

yourselves.html (reporting that the “San Francisco Superior Court previously having toexcuse an entire panel of 600 jurors when several of them admitted that they hadconducted Internet research regarding the case. These jurors indicated confusion aboutwhether the admonition that had been given about not conducting outside research

applied to the Internet.”).110. Elaine Silvestrini, Social Media Tossed Off Jury, TAMPA TRIBUNE, Jan. 16, 2010,

at 1.111. Courts Crack Down on Jurors’ Online Activity, DESERET MORNING NEWS (Mar.

7, 2010), available at http://www.deseretnews.com/article/700014609/Courts-crack-down-on-jurors-online-activity.html (informing jurors that “‘[y]ou may not use anyelectronic device or media’ in connection with the case, the recommended federal

instructions admonish. They also bar visits to ‘any Internet chat room, blog, or Web sitesuch as Facebook, My Space, LinkedIn, YouTube or Twitter.’”).




D. Double Standards: A More Precise Approach to Courtroom Decorum

The language of Michigan Court Rule 8.115 speaks generallyconcerning the possession and use of electronic devices in the courtroom;

however, the legislative history of the rule reveals the thought process

behind such broad language. Chief Justice Marilyn Kelly expressed that:

The rule the Court has approved permits a judge to adopt

a default policy banning all electronic devices from

courtrooms. I am concerned that it will seriously impede

some attorneys’ ability to practice law. The role of

technology in the practice of law has matured. Today,

Blackberrys, cell phones, and PDAs have become

commonplace for most attorneys who rely heavily on

them in their busy and fast-paced legal practices. Thesedevices allow attorneys waiting in court for their cases to

be called to stay current with, and quietly respond to,

their clients’ needs. Solo practitioners who do not have

staff are especially dependent on the devices. Hence, for

many, what was once merely a convenience has become

a necessity. For those reasons, I would allow attorneys to

bring electronic devices into courtrooms with the

proviso that their use must not interfere with court

proceedings.112

Therefore, after weighing the benefits and burdens of the current

designation, Justice Kelly seems to approve of a double standard in therule. Namely, that legal professionals should be granted the freedom to

carry and use their electronic devices, provided that they do not disturb

the court, while lay persons may be subject to stricter standards.

While, initially, such a statement may offend an individual’s sense of

fairness, one must be cognizant of the fact that court procedures are

littered with double standards, many of which are much more substantial

than cellular phone usage. Perhaps the most prominent examples of

lawyers being held to different standards of conduct in the courtroom are

the varying rules of professional responsibility. Beyond just performing

as a representative for a client, a lawyer is expected to function as “an

officer of the legal system and a public citizen having special

responsibility for the quality of justice.”

113

112. MICH. CT. R. 8.115 (statement of Marilyn Kelly, Chief Justice of the MichiganSupreme Court).

Moreover, while individuals

113. MICH. RULES OF PROF’L CONDUCT pmbl. (2009) (emphasis added).




may be held in contempt of court for “disorderly, contemptuous, or

insolent behavior,”114

lawyers are further expected to exercise “candor to

the tribunal”115

and are required to refrain from any “undignified ordiscourteous conduct”

116

Moreover, not only would such a standard be typical of court

processes, but it would also reflect a growing trend in courts in the

United States. Indeed, many courts across the country have adopted court

rules that explicitly differentiate between legal professionals and

laypersons when regulating use of electronic devices.

in the courtroom. These examples illustrate thatthe use of a double standard, which would afford legal professionals

special privileges for use of electronic devices, would be consistent with

previously established court procedures.

117One local

example of these methods is the rule prohibiting cellular phones in the

United States District Court for the Eastern District of Michigan. The

court’s local rules explicitly prohibit possession of cellular phones for allnon-attorneys.

118Moreover, even though attorneys may possess cellular

phones, they must keep the devices turned off, and may only use them in

designated areas.119 These privileges come with the potential

consequences of confiscation of the device, prof essional discipline, as

well as contempt charges for violation of the rules.120

However, Michigan state court rules, due to accommodating a

greater caseload and variety of individuals, need not be as inflexible as

the federal court procedures. Perhaps the most precise embodiment of the

argument made in this discussion is the District Court of Kansas’ court

rule regarding use of electronic devices in the courtroom.

121The rule

states that “

114. MICH. COMP. LAWS ANN. § 600.1701(a) (West 2010). In furtherance of the

argument in this section, it is worth noting that this statute specifically and repeatedly setsout responsibilities by designation. That is, each section of the statute is prefaced bycomments distinguishing the individuals to whom it applies. Id. Sub-sections (d) through(g) stipulate that they apply to “parties to the action” or “all persons.” Id. However, other

sub-sections, such as (c) and (i), have provisions that explicitly apply to attorneys,officers, clerks, and other legal professionals. Id.

Possession of electronic communication devices is otherwise

115. MICH. RULES OF PROF’L CONDUCT R. 3.3.116. MICH. RULES OF PROF’L CONDUCT R. 3.5.

117. See generally Northrop, supra note 87 (recounting that select district courts inCalifornia, Florida, Illinois, Kansas, Kentucky, New Hampshire, Pennsylvania, RhodeIsland, and West Virginia have rules excluding court officials, lawyers, and assistants tolawyers from cellular phone bans).

118. E.D. Mich. R. 83.31(f)(1) (2011), available at http://www.mied.uscourts.gov/Rules/RuleViewer.cfm?n=LR%2083.31.

119. Id. at 83.31(f)(2).

120. Id. at 83.31(f)(5).121. D. Kan. R. 83.2.4 (2009).




prohibited, except by: (1) lawyers . . . who present photo identification

and a current bar registration card from this or any other federal or state

court; (2) staff in the company of such lawyers; and, (3) individuals whoare granted specific written permission from this court.” 122

The rule alsoexempts law enforcement officers and any employees of the

courthouse.123

In Illinois, a similarly formulated court rule even provides

exemptions and procedures for news organizations that wish to broadcast

from the courthouse.124 These rules take a very clear, easily

administrable approach to handling the issue of electronic devices in the

courtroom.125

The Kansas Court Rule in particular is well balanced in its

approach for two main reasons: First, it explicitly eliminates any

confusion or misapprehension about the court’s policy by instituting a

brightline rule.126 Unlike MCR 8.115, the Kansas rule does not contain

any discretionary components, thus reducing the need for review by

other courts or mistakes in application. Second, the rule imposesresponsibility on those to whom it grants a privilege by holding each

person accountable for the use of the electronic device.127

122. D. Kan. R. 83.2.4(c).

The Kansas District Court’s rule is a more logical and sensible

approached toward maintaining order in the courtroom. In contrast to the

123. D. Kan. R. 83.2.4(b).124. C.D. Ill. R 83.7(A) (West 2010) (stating that News media representatives wishing

to conduct interviews in relation to a court case may contact the presiding judge to seek permission to bring electronic equipment into the building for that purpose . . . the judgewill designate a specific area of the courthouse where such electronic equipment may be

stored and used. After the interviews are completed the equipment must be immediately

removed from the courthouse.).125. For an example of a statute that is similar but takes a much more complicated

view of electronic device usage, see D. N.H. R. 83.7(c)(2) (West 2010) (stating that while

“Members of the bar of this court and their agents may possess cell phones . . . and similar electronic devices” they may only be used “for the limited purpose of facilitatingtheir participation in mediation sessions and providing legal representation.” The statutefurther requires that “devices shall not be brought into or possessed in any courtroom or

judge’s chambers without specific advance authorization by a judge.”).126. Cell Phones and Other Electronic Devices, ksd.uscourts.gov,

http://www.ksd.uscourts.gov/jury/cell_phones.php (last updated Dec. 19, 2008) (showingthe simplicity of this rule’s approach, the Kansas District Court website is able to put

individuals on notice that cell phones are not allowed in the courthouse. In fact, the rule isprominently displayed as the first tab under the section “Jury” on the home page).

127. D. Kan. R. 83.2.4(c)(3) (stating that “[a]ll such individuals and electroniccommunication devices are subject to proper screening and security clearance before

entry into the courthouse. Furthermore, lawyers are responsible for ensuring that theirstaff comply with all rules regarding use of electronic communication devices.”). See also D. Kan. R. 83.2.4(d) (warning that “[n]o person who is allowed to possess an electronic

communication device in the courthouse may allow it to be used by any unauthorizedperson or for any unauthorized purpose”).




Michigan Court Rules, the Kansas approach to handling electronic

devices provides the court with an easily applicable, foolproof method of

preventing “Google mistrials,” jury misinformation, and generaldisruption. Finally, the Kansas rule is more satisfactory than the

Michigan Rules in the flexibility it provides for legal professionals in

court.

IV. CONCLUSION

The concern expressed in this discussion about Michigan Court

Rules 8.115 and 2.511 is not only based on the difficulties of the present,

but attempts to prepare for potential issues in the future. As recent

history has shown, developments in the telecommunications industry are

occurring rapidly, often in unforeseen ways. In a matter of years, the

average cellular phone has become equivalent in its capabilities to alaptop, and the average laptop has become about the size of a cellular

phone. As has been expressed throughout this discussion, in light of the

potential consequences to justice and judicial expediency, Michigan

courts cannot afford to use rules that attempt to deal with rapid

advancements of technology in a piece-meal manner. One might consider

that while many proposed solutions are implemented on a local level,128

in fact, there may be a need for state and federal uniformity to accurately

address the problem. It is possible that Michigan courts may retain the

current rules and simply concede that jurors are going to perform

independent research regardless of jury instruction.129

MICHAEL R. KON

However,

Michigan courts would be better served by embracing more

comprehensive approaches, such as those used in Kansas and Illinois.

128. M.C.R. 8.115(A)(2) (stating that cellular phone policies are formed at thediscretion of the chief judge in every court in Michigan).

129. Hill, supra note 105 (stating that judges in England are essentially “‘giving up’trying to stop juries using Google, Facebook and Twitter to access potentially false andprejudicial information about defendants”).

Documents

57 Wayne L. Rev. 291 - Ijury - The Emerging Role of Electronic Communication Devices in the Courtroom - Michael R. Kon