Special Issue on Procedural Fairness - American Judges Association

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prior experience with the legal system is associated with moreknowledgeable youth, but there appears to be more support forthe conclusion that prior experience does not relate to betterunderstanding of the system. 34Given the poor knowledge performance of many youth inthe juvenile justice system, researchers have explored whethereducational interventions can improve youth’s knowledge andunderstanding. Teaching of legal information improved legalunderstanding, especially for older adolescents (over age 13),ethnic minorities, and youth with higher IQs. 35 However,efforts at increasing youth’s understanding and competencieshave not proved to be very successful with younger childrenand children or youth with developmental or other cognitivedeficits. 36Unlike children facing delinquency charges, children participatingin foster care hearings are not legally required tomeet competency standards. Nonetheless, it does seem thatgreater understanding of the process might allow children tobetter place their participation in context and draw conclusionsabout fairness. A recent study by Quas and her colleaguesexplored the relationship between maltreated children’s understandingof their dependency court involvement and theiremotional reactions to that involvement. 37 While not assessingchildren’s perceptions of fairness, the study’s focus on the relationshipbetween children’s knowledge and their comfort inthe proceedings is instructive. As would be expected, thestudy found that as children got older (the sample includedchildren age 4-15), they were able to demonstrate more generallegal knowledge and more knowledge about the dependencycourt system. Even many older children, however, lacked a fullunderstanding of the outcome of their hearing leading theauthors to conclude “[b]oth older and younger children needassistance understanding the legal system generally and interpretingwhat is happening in their own case, particularly thedecisions made in court on their behalf.” 38 The findings suggestedthat children with more general legal knowledge wereless distressed about their hearings, leading the authors to concludethat greater general legal understanding was useful forchildren in both helping them feel less distress and also helpingthem better make sense of their own participation experience.It should be noted that despite the relationship betweenchildren’s knowledge and distress, Quas et al.’s study found lowlevels of distress among most children who participated intheir hearings. Children, on average, reported positive generalfeelings and positive feelings about the court process bothbefore and after their hearings. Their feelings about the judge’sdecision were also both on average positive, and they improvedfrom before the hearing(anticipating the decision) toafter the hearing (recalling thedecision). Thus, this researchsuggests that most children donot experience negative emotionalreactions to court participationand prior knowledgeabout the court processmay make the experienceeven more positive.[C]hildren viewtheir participationin legalproceedings thataffect them asan importantcomponent oftheir judgmentof proceduralfairness.CONCLUSIONSResearch regarding childrenand procedural justice in the courts is in its infancy and is consequentlyfar from conclusive. Nonetheless there are some findingsthat suggest that, like adults, children view their participationin legal proceedings that affect them as an important componentof their judgment of procedural fairness. Children andadolescents appear to desire participation in legal proceedingsthat affect them both because they want to have a voice in decisionsand because they want to have accurate informationabout the proceedings and their outcomes. It is not clear, however,whether children are similar to adults in valuing fairnessin procedures more than they value fairness in outcomes. Thestudy examining young adults looking back on to custody decisionsthat were made when their parents divorced suggests thatthere may be an important developmental component to thesejudgments, with younger children placing a greater value onprocedural justice and adolescents placing a greater value ondistributive justice. 39 Although there has not been sufficientresearch to know whether particular theoretical models of proceduraljustice that predict adult judgments also apply to children’sexperiences, the fundamental value of participation as acomponent of procedural justice determinations appears toreflect children’s experiences as well as adults.It seems as if children would need to have a basic understandingof the legal system to be able to place their participationin context and make judgments about the fairness of proceedings.They need to know the basic roles of the professionals.They also may need to know the sources of information thejudge relies on to make decisions (e.g., written reports as wellas court room testimony and argument). There is no researchthat explores the relationship between children’s knowledgeabout the legal system and assessments of procedural justice.The recent study of children in dependency court did find apositive relationship between children’s knowledge of the legalsystem and their comfort with the proceedings. 40 Further34. Thomas Grisso, What We Know about Youths’ Capacities as TrialDefendants, in YOUTH ON TRIAL: A DEVELOPMENTAL PERSPECTIVE ONJUVENILE JUSTICE 139, 151 (Thomas Grisso & Robert G. Schwartzeds., 2000).35. Jodi L. Viljoen et al., Teaching Adolescents and Adults aboutAdjudicative Proceedings: A Comparison of Pre- and Post-TeachingScores on the MacCAT-CA, 31 L. & HUM. BEHAV. 419 (2007).36. Jodi L. Viljoen & Thomas Grisso, Prospects for RemediatingJuveniles’ Adjudicative Incompetence, 13 PSYCHOL. PUB. POL’Y & L 87(2007).37. Jodi A. Quas et al., Maltreated Children’s Understanding of andEmotional Reactions to Dependency Court Involvement, BEHAV. SCI.& L. (forthcoming, manuscript date April 1, 2008), manuscriptavailable at http://works.bepress.com/cgi/viewcontent.cgi?article=1055&context=thomaslyon.38. Id. at 21.39. Wingrove et al., supra note 28.40. Quas et al., supra note 37.Court Review - Volume 44 41
There is a clearneed for moresocial scientificresearch....Nonetheless, thelittle research thatexists suggeststhree conclusions.research exploring a linkbetween knowledge and perceptionsof fairness would beuseful. Many jurisdictions areutilizing educational materialsand interventions to childrenand youth to improve theirknowledge of the legal system.Research from the juvenile justicesystem has indicated thatthese efforts may not be as successfulas hoped, especiallywith younger children or youth with developmental or othercognitive deficits. 41 It may be important to clarify the purposeof educational interventions (e.g., to reduce stress, to increaseexperience of fairness, etc.) and then conduct research todetermine if children in the various populations of interest(e.g., foster care) show improvements in knowledge followingthe interventions, and equally important, if increase in knowledgeis associated with the intended purpose (e.g., less stress,increased judgments of fairness).Research on the legal socialization of children and youthindicates that children’s experiences with the legal systemimpacts their perceptions of and respect for the system,although the part of the legal system thus far explored hasfocused on law enforcement experiences, not court experiences.42 Nonetheless, this research produced importantresearch findings suggesting a link between children’s assessmentsof how fairly and respectfully they were treated by legalactors and their judgments of the legitimacy of legal authorityand, finally, to reductions in their illegal behavior. If children’sinteractions with police and security personnel contribute totheir sense of the legitimacy of the legal system, one mightexpect their interactions with judges and attorneys would doso as well.Child maltreatment is a risk factor for later delinquencyand a return to court as a law violator. 43 Consequently, thecourt system has an opportunity with maltreated children andyouth to provide them with experiences through their participationthat seem, from the little research that is available, toincrease their perceptions of the responsiveness, fairness andbenevolence of the system and that may also increase theirsense of the legitimacy of the authority of the system and theirtrust and confidence in the courts. Alternately, some of theearly findings reported previously in this article from our childrenin court study suggest children who do not participate intheir hearings might presume that their perspectives are notvalued and that the judge may not have adequate informationto make a fair decision. Thus, court procedures not allowing ordiscouraging children’s participation may contribute to childrenhaving negative perceptions about the legitimacy of thesystem and less trust and confidence in it. Further research isneeded to both confirm the findings of these small early studies,and also to explore whether increases in perceptions ofprocedural justice for children relate to better compliance withcourt orders and with reduced risk for later delinquency.There does not appear to be a basis for concerns aboutundue stress for children who attend their hearings and orspeak in front of others in a courtroom setting. Children whoattended hearings reported fairly low base rates of stress ordiscomfort. 44 The possibility was raised in the comments ofsome children that coerced participation may not have positivebenefits for children; however there is no research thathas directly addressed the issue. Also, some of the findingsfrom the studies on custody decision-making in divorce suggestsome children may be negatively affected by being drawninto the dispute.Some children indicated they found some of their hearingsconfusing, and they would like to understand more of whatwas happening. This would suggest a value in some interventiondirected at improving knowledge and understanding ofthe process. Research from the juvenile justice field suggestseducational interventions may not always be effective, so theimpact of such efforts should be evaluated. Furthermore, evenwith increased general knowledge children may still notunderstand the particulars of their own case. 45 The child’sattorney or guardian ad litem should take some responsibilityto prepare children ahead of time and provide explanationsafter hearings. Nonetheless, even in imperfect situations wherepreparation and debriefing does not occur, children’s stress levelsappeared quite low, and their belief that children should beable to attend their hearings appeared quite high.There is a clear need for more social scientific research inthis area. Nonetheless, the little research that exists suggeststhree conclusions. First, children’s participation in legal proceedingsincreases their perception of procedural justice in thecourt system. Second, most children do not appear to experiencesignificant stress through participation. Third, many childrendesire to participate so they can have a voice in the proceedingsthat affect them and so that they can know aboutwhat happens in those proceedings. In this general sense, childrenappear to be similar to adults. Judges have an opportunityto positively affect the development of children’s trust and confidencein the legal system by giving them the opportunity, butnot coercing them, to participate in the legal proceedings thataffect their lives.41. Viljoen & Grisso, supra note 36.42. Fagan & Tyler, supra note 20.43 Thomas Grisso, Using What We Know About Child Maltreatmentand Delinquency, 5 CHILDREN’S SERVICES: SOC. POL’Y, RES., & PRAC.299, 300 (2002).44. Quas et al., supra note 37. The preliminary findings from the childrenin court study reported in this article also found low levels ofoverall stress.45. Quas et al., supra note 37.42 Court Review - Volume 44
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Page 24 and 25: ABOUT THE AMERICAN JUDGES ASSOCIATI
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