Holding Jurors in Contempt for Cell Phone Use

Courts around the country have struggled to address inappropriate cell phone usage by jurors. Some judges have used their contempt powers to deal with the issue. In Oregon, a judge held a juror in contempt for texting during a trial, and the juror spent a night in jail as a result. In Florida, a judge cited a juror for contempt for using Facebook during trial. And now, the issue has cropped up here in North Carolina. Last week, Superior Court Judge Milton “Toby” Fitch held a juror in a civil case in contempt for using his cell phone to take notes about the trial, and sentenced the juror to 30 days in jail. The Wilson Times has the story here. The News and Observer has an AP story with some additional details here.

Facts. Judges may permit or forbid note-taking in civil matters. N.C.P.I. – Civ. 100.70 (explaining the law and proving sample instructions). Judge Fitch apparently decided not to allow note-taking and so instructed the jury, perhaps with some specific reference to electronic devices. Nonetheless, the juror took notes on his phone. A fellow juror informed a bailiff of that fact, the judge confronted the note-taker about it, and the juror admitted it. The judge declared a mistrial and held the juror in contempt.

Law. There are two types of criminal contempt – direct (in the presence of the judge) and indirect (outside the judge’s presence). G.S. 5A-13. Both are punishable by up to 30 days in jail. G.S. 5A-12. Proceedings for direct contempt may be quite abbreviated, though due process and the relevant statutes require that the alleged contemnor must be given some brief opportunity to be heard. G.S. 5A-14. Indirect contempt requires plenary proceedings akin to a trial. G.S. 5A-15. My colleague Michael Crowell’s paper on contempt lays out the details about both kinds of criminal contempt here.

Media reports suggest that the proceedings in this case were quite abbreviated, which would be consistent with direct contempt. However, if the judge didn’t see the cellphone use himself but only became aware of it through the other juror’s report, a question could arise about whether the contempt was direct or indirect. To be clear, I don’t know what the judge saw or didn’t see, and this post shouldn’t be interpreted as a comment one way or another on how this case was handled.

Judge’s authority to modify punishment. Although criminal contempt is punishable by up to 30 days in jail, it is unlike other criminal matters in that the sentence imposed remains within the control of the judge who imposed it. Under G.S. 5A-12, a judge may “at any time . . . terminate or reduce a sentence of imprisonment . . . imposed as punishment for contempt if warranted by the conduct of the contemnor and the ends of justice.” My impression is that judges occasionally announce severe punishments for contempt but later reduce them once the deterrent purpose of the ruling has been served. As of this morning, I haven’t seen any news regarding any change to the punishment of the note-taking juror.

Further reading. Michael’s paper is the best source for comprehensive information about contempt. Additional items of possible interest included his previous post about contempt for cell phones that ring during court, here; Jamie Markham’s general post about contempt, here; and Jamie’s post about probation as punishment for contempt, here. Jamie is also quoted at length in the Wilson Times story linked above.

As cell phones continue to integrate themselves further into our daily lives, this issue is sure to recur. The best that courts can do is set clear ground rules and take reasonable steps to enforce them.

9 thoughts on “Holding Jurors in Contempt for Cell Phone Use”

  1. Under what circumstances would a judge NOT want jurors taking notes? In my mind it seems like note taking would be more beneficial than not, but maybe there’s a concern about jurors not hearing part of the testimony, or misinterpreting things in their notes?

    • The legal basis for forbidding note taking is that jurors in deliberation will give too much credence to notes. No one takes notes verbatim, so by the act of taking notes, jurors are by necessity leaving out some words in favor of others.

      Also, notes cannot convey facial expressions, non-verbal gestures, tone of voice, and all other things that are available from live testimony. Remember that the function of the jury is to determine the credibility of each witness, not to transcribe what the witness says. If a juror has his or her head down writing while a witness is on the stand, it is less likely that the juror will take in the entirety of the witness’ testimony.

      That is the legal explanation.

      • Thanks! That was sort of my speculation, just wasn’t sure if it was accurate. Pretty sure every CRIMINAL court case I’ve seen notes have been allowed (however, I’ve only seen a handful of jurors actually taking notes in this cases). Never heard of a judge saying no to notes, but it does make sense in that regard.

        I suppose the jurors would have the ability to ask for anything clarified by the court record in these instances and that might be more reliable than notes?

        • In a civil trial, I was a jurror for, we were forbidden from taking notes which seemed to me initially counterproductive. Interestingly, eventually we decided for an exact split of guilt by percentage which actually led to immediate settlement saving the cost and time of any further court proceeding. A big part of this “optimal” judgement was the fact we observed (as noted and agreed during the deliberations) the defendant made few statements, which were not even directly related to questions he was he was asked, but clearly revealed his questionable state of mind. That, in turn, influenced our questions sent to the judge and receiving helpful answers. No note would reflect it appropriately.

  2. Given that a courtroom is posted as prohibiting cellphones:
    Can a person be held in contempt for having a cellphone in the “off-mode” within the courtroom?

  3. In Beaufort County NC February 16, 2017 a woman was jailed for possessing a cellphone in the off-mode.
    The phone was not in use, had not caused a disturbance, but was openly visible and was seen by the judge.
    The courthouse has a strict no cellphone policy and the judge sentenced the woman to 24 hours contempt of court, which was shortened to time served at close of court.
    The woman was taken to the jail by the bailiff, she was photographed, asked to undress, searched, put in jail clothing, and jailed. At close of court she was shackled hands, waist and feet; then lead through the courthouse to be lectured by the judge on cellphone policy and finally released.

    • In the above case a motion for appropriate relief was filed, and resulted in an order to vacate:

      In Re The Matter:
      Rosemarie Smith
      Case No: 17 CRS 208
      May 23, 2017
      Beaufort County, NC
      Second District Court

  4. Need help in Georgia state case. Juror said using cellphone take notes,despite two deputies testified juror was texting during trial.judge said he takes juror word and allowed errant juror back in deliberation room with phone. Without lookin at phone, and never questioned other,jurors about this issue,or did judge give cautionary instructions on the issue. Please send any advice or case law to. Ajnewman925@gmail.com

  5. http://m.thewashingtondailynews.com/2017/11/03/the-punishment-should-fit-the-crime/

    To the Editor,

    Movie theaters, church services and courtrooms all discourage, if not forbid, cellphone use. In point of fact, Beaufort County strictly enforces a prohibition not only on cellphone use, but even the simple possession of cellphones in the “off-mode” within its courtrooms.

    Despite “No Cellphone” postings, security guards and metal detectors, cellphones sometimes find their way into courtrooms: carried in the hands, purses and pockets of inattentive people distracted into numbness by the anxiety of “going to court.” When it happens, these phones are treated like weapons-grade plutonium, and the offenders risk being held in contempt of court. They have been taken into custody, escorted to the courthouse basement, photographed, searched, given a jailhouse jumpsuit, shackled at the wrists, waist and ankles and jailed.

    Is this level of enforcement necessary? Cellphones are often a distraction, and no one fails to appreciate that if they ring, bark or play the national anthem during a court proceeding, they will disrupt those proceedings. Neither does anyone believe that there should be no consequences for disrupting the court. Its business is a serious business. Defendants, plaintiffs, attorneys and judges have a right to expect that they will not be interrupted as they go about their work. Judges can hardly be blamed for removing potential interruptions.

    But…We expect the law to follow a simple truism: The punishment should fit the crime. In this regard, what we ask for from our lawmakers and judges is above all good judgment. To be just the law must not only be applied to all parties equally, its application needs to be proportionately tailored to fit the offense as well.

    It is not unreasonable to keep cellphones out of the courtrooms, but should their owners continue to be incarcerated whether or not there has even been a disturbance? What if the offense is not deliberate, but rather due to simple forgetfulness or inattention?

    The UNC School of Government knows of no other county where things have gone so far.

    In 2013, Michael Crowell, writing at the UNC School of Government commented: “Typically, judges have the bailiff take the offending cellphone and hold it for a while. That is probably okay as part of the court’s authority to stop the interruption of the proceeding and bring the contempt to an end. But the phone ought to be returned to the owner when court is over, if not earlier … ”

    Periodically, every policy needs to be reviewed. Beaufort County’s judges stand out as competent and experienced jurists; they can readily modify the current protocols — protocols that were initially well intended, but are now giving evidence of having unintended consequences. As a result of these consequences our friends and neighbors, men and women, have literally been put in chains and jailed for their cellphones even when those cellphones were turned off and caused no interruption of the court’s proceedings.

    The standard of enforcement Mr. Crowell has suggested is to take the offender’s cellphone, not their freedom and dignity.


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