A judge must process more than 100 defendants making their first court appearances in criminal cases.
- Would the defendant in one of these cases understand what had taken place in his or her case?
Did the judge seem interested in making sure that the defendant understood:
- His or her rights?
- The next steps that would occur in the case?
- How would the defendant feel about the judge and the justice system after this hearing?
- What steps might the judge take to improve the situation while still processing all of these cases?
- Could the legalese used by the judge and the attorneys be turned into words understood by a layperson?
- Even many judges from other jurisdictions might not know some of the terms being used in this court—but the video is based on transcripts. Some judges may suggest that it’s not really important that the defendant understand all that was going on in this hearing. But procedural-fairness principles would certainly suggest that respect for the defendant includes making sure that the defendant can understand what is going on in his or her own case. Not doing so would be expected to have a negative effect on the defendant’s trust in and satisfaction with the process.
- The same problem is present from the perspective of appraising the judge’s adherence to procedural-fairness principles. Courtroom evaluations of judges from this perspective often ask things like whether the judge explained procedures in clear language or whether the judge showed interest in the defendant’s understanding of the proceeding. Once again, from a procedural-fairness prospective, not doing so has negative effects on the defendant’s view of the process.
- At best, one would think the defendant would have a neutral view of the judge, but the defendant’s view of the legal system could hardly be positive. Consider the not-too-dissimilar hypothetical in which you are arrested in a foreign country and appear at an arraignment where everyone speaks in a foreign language. How would you feel?
- This is obviously a hard question. Some things can be done at the start of the docket to manage expectations—and those things can help from a procedural-fairness standpoint. Does the judge explain the overall process in advance? Does the judge explain the order in which cases will be called? Does the judge explain that the time for each case is limited simply because there are so many cases to process in such a little amount of time, while still showing interest in each case? To get discussion, refer back to the overall principles of procedural fairness that you are trying to achieve—voice, respect, neutrality, and trust—and ask participants to think about ways in which things might be modified to better demonstrate an interest in each of those principles.
- Consideration should always be given to language that courtroom participants may not understand. From a procedural-fairness standpoint, it is important to use clear language that is understood by all participants. Here, was it necessary to refer to “a copy of the Gerstein”? The Gerstein affidavit is a reference to an affidavit showing probable cause to believe the crime was committed, named after the case of Gerstein v. Pugh, 420 U.S. 103 (1975). The Gerstein case held that a person arrested and held for trial is entitled to a judicial determination of probable cause. Why not just refer to the police officer’s affidavit or the probable-cause affidavit? Similarly, was it necessary to refer to a “(b)(1)(a) hold”? Surely some other—understandable—term could be used.
For Further Information:
- For a discussion of courtroom behaviors that promote a sense of fair treatment, see So What Courtroom Behaviors Promote Perceptions of Fairness, Procedural Fairness Blog, Nov. 5, 2014, available at http://goo.gl/hkgdbT, or look at the Courtroom Observation Report citizen volunteers use for the Utah Judicial Performance Evaluation Commission, available at http://goo.gl/fS3Jqq.