Hold the Phone

• Author: Kate Silver
• Pages: 11-11

Hold the Phone

Do court bans on electronic devices

impede access to justice?

ON A DAILY BASIS, attor-

ney Jade Brown sees fi rst-

hand what happens when

people are separated from

their phones in court.

There was the woman

who couldn’t share a pho-

tograph on her phone

with a judge as evidence

in her case. The man who

wasn’t able to under-

stand what was being sa id

without using a transla-

tion app. The senior who

couldn’t reschedule a

shuttle ride home when

her case was ru nning late.

These scenarios al l hap-

pened because cellphones

aren’t allowed in most of

the courtrooms in a nd

around Bos ton.

Brown, who is a fellow

in the consumer rights

unit with Greater Bo ston

Legal Serv ices , which

provides pro bono work

on civil matters t o low-

income individuals, says

that often people don’t

learn until they a rrive

at court that they ca n’t

bring in their phones.

Frequently, there’s no

storage o ered, a nd they

panic.

“We’ve seen folks do

sometimes crazy t hings,

because they’re like , ‘I’m

going to miss my court

case and get in a lot of

trouble, so I have

to fi gure out what

to do with the

phone,’ ” Brown

says. She’s watched

people hide

their phones

in nooks and

crannies

around the

courthou se

and even

stu them—without per-

mission—into the bags of

their attorneys. In some

cases, convenience store s

and other businesses

near the courts w ill store

phones for a fee. “That’s

one of the better scenar-

ios,” she says.

Across the country,

courts of all t ypes have

banned cellphones in

courtrooms. Some infor m

litigants of the ban before

they show up, others

don’t. Some o er lock-

ers for storage, others

don’t. Courts have cited

di erent reasons for t he

bans, ranging fr om pre-

venting disruption in the

courtroom to protec t-

ing witnesses who could

be photographed and

potentially thre atened for

appearing.

In 2017, the McLean

County Law and Justice

Center in Bloomington,

Illinois, enacte d a cell-

phone ban and placed

lockers for court attendees

to store their device s.

McLean County

Sheri Jon Sandage

says the ban is

intended as a securit y

measure in response

to incidents

of witness

intimida -

tion, after

photos and

video of

witnesses tes tifying were

posted on social medi a.

“For law enforcement,

the ban has been positive ,”

Sandage says. “Building

employees and attorneys

are still al lowed to have

phones, and the sheri ’s

o ce prov ides lockers to

the public to secure their

phone before entering the

courthou se.”

While cel lphone bans

may have justifi able

intentions, legal serv ices

advocates ca ll them prob-

lematic—and not just

because they pose an

inconvenience.

“It’s a real barrier to

access to just ice,” says

Deborah Silva, exec-

utive director of the

Massachusetts Appleseed

Center for Law & Justice

in Boston. Silva points

out that these type s of

bans disproportionately

impact litigants who ar e

representing themselves

because they can’t shar e

evidence or look up infor-

mation they might need

using their phones.

“The burden of this pol-

icy really fal ls to those

who can’t a ord to hire a n

attorney,” Silva says.

In December, the

Supreme Court of Virgi nia

released a Model Policy

for the Use of Portable

Electronic Devic es

in Courthouses a nd

Courtrooms af ter exam-

ining the issue, o er ing

recommendations to dis-

trict and circu it courts

around the state . The pol-

icy seeks to str ike a bal-

ance between the t wo

major issues: access to

justice, and safet y and

security. Under the model

policy, the presiding judge

would need to grant per-

mission to allow phones

and other electronics in

the cour troom; photog-

raphy, video and audio

recording would require

permission; and if a ban

is in place, lockers should

be made available at that

courthou se.

As courts a cross the

country grapple wit h the

issue, Silva hopes that

they consider underserved

populations and make a

decision that will deliver

justice to all.

“Ideally, in a perfect

world we’d just like to see

the cellphone bans lifted

and have everyone allowed

to bring cellphones in,”

Silva says. “And if some-

one does act in a way

that’s disruptive or intimi-

dating, deal wit h that situ-

ation other than maki ng

up a blanket ban.”

—Kate Silver

PHOTO ILLUSTRATION BY BRENAN SHARP/SHUTTERSTOCK; PHOTOS BY LINDA LANK/GREATER BOSTON LEGAL SERVICES AND COURTESY OF DEBORAH SILVA; McLEAN COUNTY SHERIFF’S OFFICE

Opening Statements

Deborah Silva

APRIL 2019 ABA JOURNAL || 11

Jade Brown

Jon

Sandage