Maryland Adopts Uniform Policy for Cell Phones in Court

Rejoice! The Court of Appeals of Maryland today (October 20, 2010) approved a new Maryland Rule (16-110) that provides a uniform policy on "electronic devices" (e.g., cell phones, cameras, computers...).

The new Rule promises to remove some of the guesswork people face when they're headed to court.

Presently, basically every court in the state has different rules for whether and what kinds of electronic devices are allowed. In many cases, the policy is not well publicized and people are left to wonder. This can be very bad if you are getting to court right on time and get blindsided by the deputy at the door who refuses to let in with your $400 cell phone. Most courts won't just hold them for you, so you have to find a safe place outside. In my case, that would be a 6-8 minute walk back to my office in Hagerstown. In PG County, if you park in the lot down by the race track, then it might take you 20 minutes to secure your phone and get back to Court.

Thankfully, being an attorney, I flash my bar association ID and skip right on through the metal detector undisturbed - but not always. In the Circuit Court for Anne Arundel County (ironically, the county that actually issued my badge), I still have to remove my belt, but they will let me bring in my cell phone.

My favorite policy I have seen is that in place in the District Court of Maryland for Anne Arundel County. They allow everybody to bring in their cell phones, and if they go off in court, the bailiff confiscates the phone and will not give it back until the offender pays the cashier 50 bucks and produces a receipt to the judge. I've seen this happen on multiple occasions.

I have long been disturbed by the disparate policies and more so by those particular courts that prohibit the existence of an electronic device within their walls, especially for lay-people (you know, the people whose rights are actually being adjudicated or those sacrificing their time to be witnesses...i.e., the whole reason the courts exist in the first place).

For example, I was in Circuit Court in Howard County last month and a lady was contesting a speeding ticket. She had taken pictures of the scene of the incident and brought her digital camera with her to court. She put the camera in her purse and put it through the metal detector belt to be inspected by the deputies when she entered. They made no objections. While on trial, she pulled out her camera, and the bailiff immediately confiscated it and showed it to the judge. The judge chastised the lady and told her no cameras were permitted in court. She explained that she only had it here because she needed to show pictures of the scene. Sure, it would have been much smarter to print out the pictures, but it's really unreasonable to have such paranoia over the mere existence of an electronic device in a courtroom. Ultimately, the judge did the right thing and allowed the lady to present the photographs and use them to cross-examine the state trooper.

It has been my desire for some time that a reasonable uniform rule would be adopted. The Court of Appeals has made the right call, in my opinion.

With the adoption of Rule 16-110, everyone will be able to bring any electronic device into any court. You will be specifically allowed to use the phone in the court house (not in the courtroom) but not to take pictures or record video or audio. Generally, no use will be permitted at all while you're actually in the courtroom. So, no tweeting "This is soo boring, I hope my case gets called next" or sending facebook friend requests to the judge while in court.

Attorneys and those who work for them will be able to actually use their computers and smartphones in the courtroom while their case is currently being heard.

Naturally, exceptions are built into the new rule to accommodate special circumstances which might require more restrictive rules on a case-by-case basis.

In making their recommendation to the Court of Appeals, the Rules Committee concluded that:

(1) these devices, particularly cell phones and their progeny, have become so commonplace and are so routinely carried and relied upon that it would be a huge inconvenience to prohibit the public from bringing them into court facilities;

(2) drawing distinctions between those who may bring such devices into the courthouse – court officials and employees, officials and employees of other agencies occupying the courthouse, attorneys, jurors, law enforcement personnel – and everyone else is not advisable;

(3) to the extent these devices present a security issue, which they may, the courts in which that issue is likely the most serious have concluded that it may be dealt with by regulating the use of the devices rather than prohibiting them altogether; and

(4) there is no substantial justification for having different policies from county to county or between the Circuit Court and the District Count in the same county.

This is good news for everybody connected with the Courts in Maryland. Because of this change, you will be able to fare forth to court with your iPhone in your pocket. Just don't forget to turn it off when you get into court. Oh, and take that stupid bluetooth off your ear.

You can read the new Rule here, and the recommendation from the Rules Committee here.

Maryland Makes It Easy To Authenticate Myspace Pages

There is good news for trial attorneys seeking to get into evidence any helpful information gleaned from an adverse party's or witness' social networking profile. Of course, this operates as bad news for anyone opposed to the introduction of the same material.

Today (May 27, 2010), the Maryland Court of Special Appeals issued a ruling that establishes the level of authentication necessary in order to admit printouts of an individual's social networking profile page (such as Myspace, Facebook, Twitter, LinkedIn, etc...). The case, Griffin v. State of Maryland, September Term, 2008, No. 1132, Maryland Court of Special Appeals, involved a nasty murder and, allegedly, witness intimidation. One of the State's key witnesses changed his story, and, in an effort to rehabilitate his credibility, the State hoped to prove that the cause for his inconsistent testimony was that he was being intimidated by the defendant's girlfriend.

The State found what it believed to be the girlfriend's Myspace page with a posting on it that said "SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" A Maryland State Police investigator printed out the page showing the date it was printed.

The defendant objected, arguing that the State could not properly authenticate the document or establish that it was actually the girlfriend's Myspace page, or, that, even if it was, she was the one who accessed the site to post the message about snitches.

The trial court ruled that there was enough information within the printout to meet the low threshold requirements of authentication provided by Maryland Rule 5-901. According to the opinion, the trial court "must make its threshold determination of whether there is sufficient authenticating evidence on the basis of admissible evidence that the jury may later consider in making its ultimate determination of authenticity. ... However, the burden of proof for authentication is slight, and the court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so" (internal citations and quotations omitted).

Specifically, the court ruled that the document was sufficiently authenticated because (1) the profile picture was clearly of the girlfriend, (2) the profile stated the girlfriend's actual birthdate, (3) the profile made references to her children, and (4) there was a reference to a unique nickname the girlfriend admitted calling her boyfriend ("Boozy").

The Court, following the lead of an appellate case out of Ohio, dismissed concerns that "the possibility that someone else had used [her] account to send the messages cannot be foreclosed," emphasizing that "the evidence required to meet the authentication threshold for admissibility is quite low," and that "documentary evidence is properly authenticated if a reasonable juror could find in favor of authenticity" (internal citations and quotations omitted).

In light of how easy it is to create a fake Myspace, Facebook, Twitter, LinkedIn, etc... page, one might have expected the bar for authentication to be set slightly higher. Taking some pages from the efforts of the RIAA's reign of litigation terror against illegal music downloaders, one could certainly have subpoenaed Myspace for the IP addresses used to log in to the account, the email address tied to the account, and the "real name" given at the creation of the account. Then, you'd have to determine the internet service provider (ISP) who provided the IP address and subpoena the identity of the owner of that particular IP address at that particular time. Assuming you got the email address, you could subpoena the email provider for the subscriber information, e.g., real name given for the account, IP address used to sign up, log in, etc., as well as the contents of emails to help establish the identity of the person who used the email account.

This process is a major pain and, in practice, can take months to accomplish.

I once attempted to admit Myspace profile pages into evidence, and I was shot down. An adverse witness had at least a half a dozen references on his Myspace page to getting "baked," "smokin' some fine-ass homegrown," getting "tore up from the floor up," etc.. I was attempting to establish that his memory of the time in question may not exactly be crystal clear because there was a good chance he was stoned or drunk at the relevant time. The judge was not happy with me and refused to let me introduce the printouts because they were overly prejudicial - which was exactly my reason for wanting them in evidence.

Anyway, I had planned to authenticate them through the witness himself, cross examining him about the accuracy of the profile information, work and employment history listed, pictures, friends, etc.. I never had my chance.

The standard announced by the Court today seems quite low. That said, I'm not necessarily complaining because I know that I'm equally likely to want a high or low standard in any given case, depending only on whether I want the documents in or out.

In any event, be careful what you put in your public profiles, and, whatever you do, don't intimidate witnesses on your Myspace page - or anywhere else, really.