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.

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