March 31, 2021
It is hard to overstate the importance of procedural fairness and its impact on the American system of justice. However, equally hard is precisely defining what procedural fairness is and how it is attained. A possible answer to address these issues is the use of court watcher programs.
The Center for Court Innovation's Procedural Fairness/Procedural bench card for trial judges defines procedural fairness as: "the perceived fairness from the proceedings, from the surroundings, and from the treatment people get." The key here is the perception of fairness, a subject further elaborated upon in a Court Review article by Judges Kevin Burke & Steve Leben. In Procedural fairness: a key ingredient in public satisfaction, Judges Burke & Leben note: "voice, neutrality, respectful treatment, and engendering trust in authorities" are key elements of procedural fairness. Again, all of these elements focus on how judges and court staff interact and treat others, not necessarily whether they rule for or against a particular person.
The National Center for State Courts (NCSC) has many resources on procedural fairness to help state courts deliver fairness to citizens in their legal proceedings as well as education. Recently, NCSC's Tiny Chats series discussed applying these principles to courts operating during the pandemic.
Courts can obtain information on the perception of procedural fairness from a host of sources. For example, some court systems use judicial performance evaluation systems based on courtroom observations. Utah’s Courtroom Observation Program operating under the state’s Judicial Performance Evaluation Commission, trains volunteers to give their impressions of what they see in court proceedings. This information is part of the judge’s evaluation which is then provided to the public at election time. A 2007 Court Review article examined the particular criteria and methods of the program.
Additionally, NCSC's 2017 Elements of judicial excellence: a framework to support the professional development of state trial court judges considered the possibility that the courtroom observer could be another judge or judicial mentor. Surveys of attorneys and court staff are also potential sources for information, insight, and feedback.
Finally, there are groups external to the courts that function as "court watchers." These groups focus on a particular subject such as bail and pretrial detention hearings or issues related to domestic violence. They are not typically focused only on judges and court staff, but prosecutors, defense counsel, and others that operate within the courtroom itself.
For more information, contact Knowledge@ncsc.org or call 800-616-6164.