PROCEDURAL JUSTICE FOR PROSECUTORS: To Be Fair (and be seen as fair) WORKSHOP #1

1. PROCEDURAL JUSTICEFOR PROSECUTORS: To Be Fair (and be seen as fair) WORKSHOP #1

2. AGENDA: WORKSHOP #1 Lorem ipsum dolor sit amet •sit ut erant iusto oportere•amet alia dolore, per congue mediocritatem ex •An dico dicant corrumpit qui, id aperiam euismod dolorem vim, pri propriae tacimates id. H

3. FRAMING DISCUSSION Live polling: What percentage of defendants in your community would say that they expect to be treated fairly by prosecutors? 2. Would you estimate that the public’s trust and confidence rating in your office is (a) the same as, (b) higher than, or (c) lower than: •judges? •other court staff? •police?

4. FRAMING DISCUSSION ABA Rule 3.8 Special Responsibilities Of A Prosecutor “The prosecutor is an administrator of justice,a zealous advocate, and an officer of the court.The prosecutor’s office should exercise sound discretion and independent judgment in the performance of the prosecution function.” As prosecutors, what is our professional mandate?

5. FRAMING DISCUSSION But what does it mean to “do justice”? Would the public answer this question differently than we would?

6. PRACTITIONER VOICES: “The process is adversarial, but it shouldn’t be mean or unfair.”

7. TRAINING GOALS & OBJECTIVES •Define procedural justice and the benefits of improving public trust •Examine real-world applications for prosecutors in their dealings with victims and witnesses •Examine real-world applications for prosecutors in their dealings with defendants •Discuss how procedural justice can apply to the office and court environment •Commit to implement practices at one or more key touch points of the process Ultimate goal: To create a more equitable and effective Criminal justice system

8. DEFINITION & RESEARCH BASICS Procedural Justice: “how people and their problems are managed when they are dealing with the courts” • Tom Tyler, “Procedural Justice and the Courts,”Court Review (i.e., the “how,” not the “what”)

9. DEFINITION & RESEARCH BASICS Core Elements of Procedural JusticePeople are more likely to accept decisions when they: •Believe they were treated with dignity and respect •Understand the process •Have had a chance to be heard (voice) •Believe the decision-making process is neutral and unbiased (neutrality)

10. DEFINITION & RESEARCH BASICS To whom does procedural justice apply?In a criminal court context: •Victims •Witnesses •Defendants •Family members •Community •You and your colleagues

11. DEFINITION & RESEARCH BASICS Outcomes vs. Treatment •Most people like to win! Outcomes matter •People know they can’t always win •People will be more likely to accept “losing” if they perceive as fair the procedures and interpersonal treatment they received This is good news for people who deliver a lot of bad news as part of their job.

12. DEFINITION & RESEARCH BASICS Procedural justice is the primary factor in litigants’ willingness to accept decisions In other words: winning isn’t everything! Tom Tyler, Yale Law School

13. PRACTITIONER VOICES: “I try to constantly remind new attorneys that they aren’t here to “win,” to lock people up. Their job is to keep the community safe including defendants. As long as they are doing things the right way, I’m going to support them.”

14. DEFINITION & RESEARCH BASICS Legitimacy and Race Perceived positive court performance, by race/ethnicity •White 59% •Hispanic 47% •Black/African-American 31% (Statewide Resident Sample in New York, Farole 2007) Key Takeaway:Perceptions and experiences vary, but all races prioritize fair treatment

15. PROCEDURAL JUSTICE MYTHS DEBUNKED MYTH #1: Delivering bad news will always make you unpopular MYTH #2: People don’t care about fair treatment as much when the stakes are high MYTH #3: Procedural justice is just about being nice to people

16. APPLICATIONS IN OTHER CONTEXTS

17. MEDICINE i.e. bedside manner Primary care physicians with no prior malpractice claims were more likely to: •educate patients about what to expect •laugh and use humor •solicit patients' opinions •check for understanding •encourage patients to talk Spending an extra 3 minutes with each patient was also predictive of having no claims (18 minutes vs 15 minutes).

18. AIR TRAVEL Consider the last time you flew.How was your experience—from the moment you arrived at the airport until you arrived at your destination? Did you experience elements of procedural justice?At what points was it lacking?What impact did it have on your compliance?

19. PRACTITIONER VOICES: “You’re accustomed to this system. Victims and witnesses aren’t…. You shouldn’t do this work if you can’t treat victims and witnesses fairly.”

20. POTENTIAL BENEFITS OF PROCEDURAL JUSTICE • Overall:•Increased public trust in the justice system • •Improved cooperation and compliance • For court professionals: • •Improved job satisfaction

21. POTENTIAL BENEFITS OF PROCEDURAL JUSTICE For defendants: •Greater trust in the process •Better understanding of the process, including plea negotiations and sentencing •Higher appearance rate in court •Fewer violations, revocations, and involuntary returns Fewer disciplinary incidents (corrections) •Compliance with the law (i.e. crime prevention)

22. POTENTIAL BENEFITS OF PROCEDURAL JUSTICE • For witnesses/victims: • •Greater trust in the process, including trusting • prosecutors’ motives and directions re: trial preparation • •Satisfaction with the process • •Higher appearance rate in court • •Increased likelihood to report future crimes • *Defendants and witnesses/victims often come from the same communities. • Increased trust and confidence among victims may help reduce the likelihood • of future criminality as well.

23. PRACTICES TO CONSIDER: VOICE

24. PRACTICES TO CONSIDER: NEUTRALITY Neutrality is demonstrated when legal principles are consistently applied by unbiased decision makers who are transparent about how decisions are made •Explain how decisions are made, including relevant statutory or case law requirements •Address all parties in the courtroom respectfully and neutrally •Avoid jokes or conservations that could be perceived as biased •Acknowledge unfairness when you see it •Educate yourself about implicit bias

25. PRACTICES TO CONSIDER: RESPECT Demonstrate respect by treating individuals with dignity and openly protecting their rights without sacrificing accountability •Introduce yourself by name; ask individuals how they would like to be addressed (including gender) and how to pronounce their name •Make regular eye contact; do not perceive lack of eye contact from individuals as a sign of disrespect •Prioritize respectful and non-intimidating body language •Offer food/water whenever possible •Acknowledge disrespectful conditions, including wait time •Personalize interactions; make case file notes to help recall details later •Offer a safe waiting area for all •Stagger dismissal of parties from the courtroom

26. PRACTICES TO CONSIDER: UNDERSTANDING Ensuring understanding of legal rights and the court process •Use plain language and minimize or explain legal jargon •Create helpful, grade-level appropriate handouts about next steps and available resources; provide in multiple languages whenever possible •Ask individuals to repeat back their understanding of key procedures and decisions •Plan for how to address individuals who you are unable to assist (for ethical reasons or otherwise); refer them as appropriate to other resources/contacts •Partner with victims’services providers to understand available resources and make appropriate referrals

27. PRACTITIONER VOICES: “I use conversations to convey information. It lets defendants see me and know I’m not willing to negotiate beyond a certain line.”

28. ACTION PLANNING Develop an action plan to incorporate procedural justice into your work.

29. EXERCISE: DISCUSS REAL-WORLD EXAMPLES Share examples from your work: •Voice: The ability of individuals to participate in the case by expressing their own viewpoints •Neutrality: Consistently applied legal principles by unbiased decision makers who are transparent about how decisions are made •Respect: Treating individuals with dignity while openly protecting their rights •Understanding: Ensuring understanding of legal rights and the court process

30. EXERCISE: KEY INTERACTIONS WITH WITNESSES/VICTIMS Procedural justice interactions should include: •Meaningful opportunities to ask questions and share concerns •Observable signs of respect •An explanation of process and rights, including how and when testimony may be used and shared •Discussion of possible outcomes •Acknowledgements of perceived bias •Offers of assistance

31. EXERCISE: KEY INTERACTIONS WITH WITNESSES/VICTIMS Consider key touchpoints with witnesses/victims: • Interview at time of incident • First interview post-incident • Discussion regarding plea disposition • Discussion to prepare for hearing or trial

32. EXERCISE: KEY INTERACTIONS WITH DEFENDANTS

33. EXERCISE: KEY INTERACTIONS WITH DEFENDANTS Consider the key touch points with defendants: • First interview post-incident • Arraignment • Discussion regarding plea disposition • Discussion to prepare for hearing or trial • Post - conviction

34. PROCEDURAL JUSTICEFOR PROSECUTORS: To Be Fair (and be seen as fair) WORKSHOP #2

35. AGENDA: WORKSHOP #2 Lorem ipsum dolor sit amet •sit ut erant iusto oportere•amet alia dolore, per congue mediocritatem ex •An dico dicant corrumpit qui, id aperiam euismod dolorem vim, pri propriae tacimates id. H

36. FEEDBACK ON ACTION PLANS What three words best describe your pilot testing experience?

37. EXERCISE: IMPROVING SUBSTANTIVE FAIRNESS Are there improvements prosecutors could make that would improve actual, substantive fairness of the process, not just the perception of fairness? •Pretrial release •Trial readiness •Plea practice/sentencing

38. EXERCISE: MESSAGING FAIRNESS What do you wish the public understood better about your job or priorities? Are there agency policies or practices that could be more transparent? What might the benefits be of improved transparency?

39. GROUP DISCUSSION: COMMUNITY ENGAGEMENT What can/should engagement look like with the broader community? •In the courthouse •In the community

40. TRAUMA-INFORMED PRACTICE Considerations for survivors of domestic violence/sexual assault (including defendants): •Enhancing victim safety •Reducing trauma •Promoting accountability What practices are associated with these goals?

41. EXERCISE: ACTION PLAN Revise your action plan to incorporate procedural justice and other fairness initiatives into your work.

42. THANK YOU!

43. For more resources and assistance: www.courtinnovation.org/proceduraljustice http://bit.ly/ProJust info@courtinnovation.org