The Perils of Electronics in the Courtroom

posted by Patricia M. Noonan on Thursday, July 14, 2016

Attorney and client using electronics in a courtroom

A 1981 United States Supreme Court decision holding that the federal constitution does not prohibit states from allowing cameras and other recording equipment in the courtroom stirred up much debate about the impact of television and radio coverage on court trials.

An article announcing the decision attributed it to the “Age of Electronics,” noting that 97 percent of U.S. homes had one or more television and radio set, “a distribution roughly matching that of indoor plumbing.”

Today, the “Age of Electronics” presents the potential for daily audio and visual recording of attorneys in courtrooms. In fact, numerous courtrooms are now equipped with sensitive audio recording devices.

While many courts ban cell phones and other video-recording devices, most allow exceptions for lawyers and court personnel. However, restrictions cannot ensure that an observer will not manage to slip a device past security.

Recent internet postings demonstrate the perils of today’s technology. For example, one post referenced a political ad which claimed to show a Michigan Supreme Court Justice sleeping on the bench. Another posted that a courtroom microphone left on during a court recess picked up a New Jersey attorney’s assertion that the prosecutor is “in my pocket.” Yet another posted that a criminal defense attorney was shocked to learn that his confidential communications with his client at the defense table were being broadcast in media viewing rooms.

Attorneys have an ethical duty to ensure their conversations with clients are confidential. This may now require some advanced investigation as to the location of microphones in the courtroom, awareness of when the devices are recording and knowledge to operate mute buttons when speaking to clients. Additionally, attorneys need to be cognizant of everything they say in the courtroom, on recess and even in hallways or elevators.

In this new “Age of Electronics,” attorneys need to be always mindful of civility, sensitivity and professionalism.