By Justice Sandra Day O'Connor

Remarks to National Center for State Courts on public trust and confidence in the justice system

May 15, 1999

Remarks to National Center for State Courts on public trust and confidence in the justice system
Type: Speech
Location: National Center for State Courts

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Unknown Speaker
Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Thank you very much, Chief Justice Lackett of my home state Supreme Court, Chief Justice Veasey of Delaware with whom I had the privilege of being with back in November when I went to Delaware for an event of the state bar there. And all of the chief justices, justices, judges, great Americans and others here at this conference today, I'm so glad to be with you. But I'm also very nervous because I haven't been able to attend your conference. And I told Tom's Lakha that I thought I had a lot of nerve to come here and talk to you on your last day when I didn't know what you would been talking about. And I hope you will Give me because I haven't been privileged to be part of your conversations and I surely wish I had, because there's a lot I could learn. And I've been a little bit out of touch with things in the state court systems lately, as you might have noticed. So I think those of you here are in tune with what's going on much more than I am. I work in a building which bears a marble inscription over the entrance that says equal justice under the under law. The subject of this conference shows an admirable awareness of the importance of public trust as a dimension of equal justice. This is the first national conference on this subject, and it's very impressive that so many state Chief Justices and state court administrators are here. Also impressive is the hosting array of National Court organizations, the American Bar Association, state bar associations, representatives of the federal judiciary, the League of Women Voters, the National Association of Women judges, and the many private citizens and the citizen groups who are present here today. It's a most worthy and appropriate conference, you know, as courts and as judges and courts, we do care first and foremost about how we serve the public. And our report cards in the last analysis come from the public that we serve. And nothing could be more important than to step back now and then and look at them. Sometimes in the pressure of doing what judges have to do and running up tight ship and the court room and deciding tough issues. We might forget SM the last analysis it is, after all the public we serve and that we do care how the courts are perceived generally. And when he invited me to speak today, Chief Justice Tom slack it made it clear that he and his fellow chief justices are not here

just to learn more about how we can build public trust in the justice system, but to become catalysts for action on the subject, and the measure of this conference will be what happens when you return home, what you do about the conclusions and ideas discussed here. The 1999 national survey taken by the National Center for state courts, provides a fascinating glimpse into public attitudes about state courts, together with the earlier survey conducted by the American Bar Association The surveys reveal a fairly high level of public confidence in our courts. There is a widely held belief that although not perfect, our justice system is one of the best in the world. And public confidence in our system has increased over the last 20 years, even as confidence in other public institutions has declined. slightly over half of those surveyed had been called for jury service at some time in their lives. The American Bar Association survey reveals strong public support for the use of juries. But the surveys also showed substantial dissatisfaction in some areas, and many opportunities for increasing public confidence and trust in the justice system. You've now explored public attitudes and examined your own experiences and the justice system. You've arrived. identified a number of critical issues. I've not had the opportunity to be with you, as I said, for your discussions, and I will mention only a few areas relating to my own longtime concerns. And my failure to mention other issues that you may have discussed and zeroed in on is by no means an indication that I consider them unworthy of attention. Now, among the ideas that have been discussed here, and which will undoubtedly be part of your national action plan, is the need to strengthen juvenile and family courts. As a former judge of the Superior Court in Maricopa County, Arizona, I've had the experience of dealing with family issues. Courts that here family and juvenile cases touched the lives of many people, and they're often called upon to help man social bonds and to try to keep the social fabric of the community intact. As the involvement of courts in the area of family and juvenile justice continues to grow with our population, it's likely that public perception of courts will be increasingly influenced by how well these family and juvenile courts function. The public opinion survey conducted by the National Center for state courts demonstrates that much improvement is needed in this area. The survey reported that a majority of Americans believe that court handling of family and juvenile cases is merely fair or poor. Only one third of the public rates the courts is doing either an excellent or good job with juvenile cases. This rating was lower than that for the court handling of civil and criminal cases in general and it indicates that there is considerable work to be done in the juvenile and family areas. The low public confidence in these courts reflects in part the difficulty of the tasks these courts face. Family cases presents special challenges for judges, because the role of the judge in such cases is substantially different than in the run of the mill civil and criminal case. juvenile judges by necessity become more involved in practical problems solving, they may identify crucial needs for social services. In child abuse cases the courts try to provide a protective shield for children and are often called upon to make decisions that fall outside the normal scope of legal training and experience. juvenile courts require specially skilled and often more expensive staff support to assist the judges handling these non traditional roles. Consequently, that juvenile judge may spend considerable time overseeing the court staff doing administrative duties, family and juvenile court judges function and a forum that's charged with human emotions. The only time I ever experienced danger in a courtroom was when I said in a family matter involving the breakup of the marriage and a custody problem, judges are called upon to make decisions that profoundly affect families, and perhaps Nothing is more difficult than terminating parental rights. The emotional trauma of the family court is often exacerbated when litigants choose to represent themselves as they do more and more often these days. Indeed, judges working in this area have to operate and what is increasingly becoming a lawyer loss environment. The city situation is sometimes further complicated by linguistic problems. I don't know what all of you have seen. But certainly in my home county and Arizona, there was a large Spanish speaking population, and sometimes adjust communication within the court was more difficult. Another reason that public perception concerning the handling of juvenile cases is negative. Maybe related to the next point I'm going to make in a few minutes, that there was a rather widespread belief that African Americans are not treated as fairly as other groups. The statistics of the racial characteristics of juvenile offenders reflect that substantially more African American young people are charged with delinquency or crime than their numbers in the general population would indicate the reasons for the disparity need to exam, and the process of the courts must be made as fair and as even hand as we can possibly make it. The performance of family and juvenile courts is vitally important to society. And of course to the individuals caught up in a disintegrating family situation. In the planning that follows this conference, I personally hope that a high priority will be given to this area, and that judges, law schools, judicial educators, and judicial planners will give family and juvenile justice the attention it deserves. My second point, deals with racial bias and court Community Relations. And I think this is an issue that should be of concern to all of us. The belief that African Americans have that our system of justice does not serve them well or well enough. The results of the public opinion survey for this conference illustrate the magnitude of this problem. Two thirds of the African Americans surveyed believe that courts are out of touch with the community, and that African Americans are treated somewhat or far worse than other racial groups. Moreover, the survey indicates that members of other racial groups agree that African Americans are treated less fairly by the courts than other groups. Clearly, this is a problem that has to be addressed. As we near the end of the 20th century, I think we can look back and say we have made great strides toward the racial integration of our society and the pursuit of gender equality, and the protection of fundamental rights and freedoms. But legal change is not always enough. The perception that African Americans are not accorded equality before the law is pervasive, and it requires us to take action at every level of our legal system, especially at the local level. The nature of such action will be determined by you and your colleagues. The fact that a conference such as this is taking place indicates that courts are interested in establishing closer relations and better communications with the minority communities that they serve in part, but concrete action must be taken to ensure that court services do not operate in ways that perpetuate racial or gender bias. The problem of perceptions is not confined to the African American community. The pre conference survey reveals that a majority of Hispanic Americans and 40% of Caucasians also feel courts are out of touch with the community. There are, of course, ethical and Prudential limitations on the extent of interaction of judges with the public. But these constraints on judges may permit a more active role for judges in the community. That has been the case in the past. As a result of this conference, I hope that states will begin to explore the permissible scope of court Community Relations and examine the various ways in which these relations can be strengthened.

Now another point juries. The survey revealed that close to 25% of those surveyed had been called for jury service. The American Bar Association survey showed almost 70% of those surveyed consider the jury the most important component of the justice system Most people who actually visit the courts do so when they're called for jury service. juries usually do their job very well. On occasion, they show extraordinary courage and delivering a burden. But at times, they can also disappoint us, one of this country's great observers of human nature, Mark Twain once complained that juries had become the most ingenious and infallible agency for defeating justice that human wisdom could come try. But we're going to continue to rely on juries in this country. Our federal constitution and all of its state counterparts guarantee the right to trial by jury. It's fundamental to our system of justice. But there are serious problems with our handling of juries today and many jurisdictions. solving these problems can be assured if every state We'll consider some needed changes. Some states have already done so. my home state of Arizona has had a jury project successfully completed and I think New York State with Judith Kay's help has done the same, and others may be in process. There are three aspects that I think need Particular attention. First, the conditions of jury service. When citizens are called for jury service, they often view it as a burden rather than a privilege. Indeed, some don't show up at all, I'm told. And for good reason, when they arrive at the courthouse, they're frequently treated more like sheep than people. And the system can seem designed to disrupt their lives to the maximum possible degree. Second is jury selection the process of selecting a jury from the citizens called for jury service on a particular day has changed somewhat, from a necessary safeguard against potentially bias jurors to away in many cases, for highly paid jury consultants to attempt to ensure a jury favorable to the side paying their fees. And I think this is something that has to concern us with the jury system. Third, the conduct of the trial itself. Too often, jurors are allowed to do nothing but listen passively to that testimony, without any idea what the legal issues in the case are, because they aren't told at the beginning of the case. They're not allowed to take notes in many jurisdictions or to participate in any way. And at the end of the case, they are finally read a virtually incomprehensible set of instructions and set into the jury room to reach verdict. In a case they may not understand much better than they did before their trial began. The jury system is not only central to our trial process, but it's the primary link between the courts and the community. If public attitudes are going to be of concern to us, they certainly are affected by how jurors perceive the system. The impressions jurors received during their jury service can have a significant impact on public perception about the justice system. In Arizona. As I said, there have been a series of reforms to increase your participation at trial, and to increase the understanding and respect that citizens have for the system. That time jurors spend in jury service is perhaps our best opportunity to instill in them a sense of trust and the fairness and the competence and the justice system. For this reason I urge every participating state to examine or reexamine the jury system in the state and to make any necessary changes to make them representative and more effective than has been the case in the past. At the very least, every state should reexamine and perhaps narrow the use of peremptory challenges, in which jurors are excused with no reason the

widespread use and abuse of peremptory challenges, I think, has contributed to the impression that some have of unrepresentative juries. It has also given rise to so called scientific jury selection, which some say can be used to assure a particular verdict. Moreover, the use of unlimited Cause challenges to perspective jurors, coupled with extensive media coverage of some cases, leads some courts to search for the most ignorant and poorly informed citizens to serve as jurors in high profile cases, because only those citizens are likely to have avoided forming any opinions. With respect to jurors selected for service, they ought to be given a clear and understandable set of instructions on the law at the beginning of the case as well as at the end. They should be allowed to take notes to let the judge know of questions they would like asked witnesses, and some few states now permit the jurors to discuss aspects of the case before they're sent for final deliberations with each other. All these issues and more should be considered fine line

Finally, access to justice. The survey data developed for this conference also shows that a great majority of people do not think justice is affordable. And they attribute this and large part to the cost of legal services. It also shows perhaps not surprisingly, that confidence in the courts increases with income levels. The Sixth Amendment to the United States Constitution guarantees the accused the right to assistance of counsel for his defense. The Supreme Court has held that this right includes the right to counsel without cost for all indigent defendants in danger of losing their liberty and on their first appeal as a bright Congress has now enact a statute that provides for the appointment of counsel represent an indigent criminal capital defendant in federal post conviction proceedings. The clarification and expansion of the constitutional right to legal representation on criminal cases, has produced systems to provide counsel to end indigent criminal defendants. But these systems have not always been proven to be sufficient.

There has been increasing recognition that in capital cases in particular, the availability and quality of representation is sometimes inadequate. Recognizing the short falling Some states have begun taking steps to improve the level of representation in death penalty cases. Congress recently sought to speed up this process when it enacted the anti terrorism and effective death penalty act in 1996. Congress required that states provide a mechanism for the appointment compensation and payment a reasonable litigation expenses of competent counsel. In state post conviction proceedings brought by indigent prisoners whose capital convictions and sentences have been upheld on direct appeal in the state, or have otherwise become final for state law purposes. Before they may take advantage of new time limits on the filing of federal habeas petitions by capital defendants. This new law, it is hoped, will provide an impetus to the provision of adequate representation to all indigent capital defendants. But the law has no effect this new law passed by Congress, absent action on the part of states to carry out its provisions in a fair and a faithful manner. And of course that addresses but one small part of the broader problem inadequate counsel for the poor.

The problem of adequate representation for the poor is not of course limited to criminal proceedings. similar problems plague civil proceedings as well. The Economics of modern law practice excludes many people and small businesses from trying to seek civil justice through the courts. Many of the solutions developed for representation of indigent criminal defendants are not practical or appropriate in civil cases. But in our efforts to address the problems of inadequate representation. We mustn't forget that there also is a pressing need to provide access to representation in civil cases to those who can't afford it. In large part because of the expense and difficulty of obtaining adequate representation, more people are reading resorting to self representation in courts. This can be risky for the litigants who often aren't properly prepared to present their legal claims. It can be burdensome for the courts, which are forced to make decisions in poorly argued and presented cases. As you've learned, some communities are developing Computer Aided assistance to pro se litigants in selected areas. staffing in some jurisdictions is being provided to help people take advantage of these new processes. These efforts are laudable, and I think we should experiment with an array of such programs. At the same time, we have to continue to encourage alternative dispute resolution at early stages of cases to resolve them before they reach the courtroom.

Although the pre conference survey did not address public levels of satisfaction, With alternatives to courtroom litigation, previous surveys have shown significantly greater satisfaction when a dispute is mediated or negotiated as a means of resolving it than taking it to a court. The conference has identified many possible ways in which you can work to broaden citizens understanding and trust of the justice system. And such understanding and trust is essential to our system of government. It's a government of the people and we want the people to understand and to care. as judges, court administrators and attorneys, we all rely on public confidence and trust to give the courts decisions, their force, we don't have standing armies to enforce opinions. We rely on the confidence of the public and the correctness of those decisions. That's why we have to be aware of public opinions and of attitudes toward our system of justice. And it is why we must try to keep and build that trust. We can do it. By working to create adjust society, the justice system must provide for the fair, prompt and proper resolution of the conflicts brought to it. And it must also work to help the public see what the system is doing, and how it is being done. You've taken a first step toward that goal by holding this meeting. And it's my hope that this conference has given you some ideas for actions you can take when you go home, to put the goals of this conference into effect and make it the landmark event that its organizers hoped it would be. I wish you every success in your efforts on behalf of all us. Thank you.