Effective Judging: Trauma in the Courtroom

Written by Judge Brian MacKenzie (Ret.) and Judge Kevin Burke (Ret.)

There are cases where everyone in the courtroom knows that a litigant or witness has suffered a traumatic injury. But what if the judge does not know about the person’s traumatic injury? Self- represented litigants will often not tell a judge their history and even those individuals who are represented may have a lawyer who for whatever reason either does not know of the trauma, or just does not say anything.

Traumatic events can include physical, psychological, sexual abuse, terrorism and war, domestic violence, witnessing violence against others, accidents or natural disasters. They can result in serious stress and detrimental consequences for survivors and their families. Approximately one-half (50 percent) of the population will be exposed to at least one traumatic event in their lifetime. Although the majority of individuals will be able to absorb the trauma over time, many survivors will experience long-lasting problems. And then they may show up in a courtroom.

Courtrooms can be Intimidating

It is important to remember that courtrooms are intimidating places. In one study of public perception of the courts, the National Center for State Courts found that 44 percent of the public think that an ‘intimidating atmosphere’ best describes a courtroom. The judge typically sits perched up on a bench and dressed in a black robe. Many times, everyone is told to rise when the judge takes the bench, and oh yes, take off your hat. The magistery of the courtroom is akin to the spiritual experience one may get from attending a church, synagogue or mosque.

But there is a price we pay if judges are not aware of the negative effect intimidation can have. People who feel intimidated are afraid to speak or ask questions. The social science research on procedural fairness (also known as procedural justice) concluded that “voice” is critically important.^[1] But even if you are not a strong adherent to achieving procedural fairness, it is obvious that a person who feels intimidated is far less likely to ask questions. Forty percent of the public believe judges’ orders are not understandable.  While that number may be a far too cynical view of the capacity of judges to explain their orders, intimidation can give a judge false assurances. “Do you understand my order?” asks a judge.  To which the intimidated litigant replies: “Yes, your honor.” But the person is thinking: ‘I just want out of here. I have no idea of what that judge said.’

Procedural Fairness and Trauma

When you add a history of trauma, it is even is an even harder to achieve procedural fairness. The emerging evidence dictates that trial judges should develop an understanding of trauma that will help them recognize the presence of a history of traumatic injury and how to be more effective in responding to it. The Targeted Capacity Expansion (TCE) for Jail Diversion Study found that the number of defendants with a significant history of trauma is astoundingly high: 96 percent of women and 89 percent of men.  But another challenge judges face in effectively dealing with trauma is that it does not just impact defendants. Results of a study of domestic abuse victims found high rates of post-traumatic stress syndrome (PTSD), depression, and substance abuse/dependence. The study found that 57.4 percent of victims met the criteria for PTSD as well as depression (56.4 percent). Similarly, a significant portion of the sample met criteria for alcohol dependence (18.1 percent) and also drug dependence (6.4 percent).  Moreover, almost one-half of the sample met diagnostic criteria for two disorders.^[2]

Remember, trauma can impact many important court decisions, such as:

• temporary placement or custody,
• detention or hospitalization,
• residential or community-based treatment,
• treatment and referrals to health and behavioral health services,
• transfers to adult criminal court,
• termination of parental rights and adoption,
• restoration and treatment for child victims,
• visitation with maltreating adults or jail/prison visitation.

Good Judicial Practice

Procedural fairness is essentially good judicial practice. It is grounded on treating individuals who come before the court with dignity and respect. Judges who are trauma-informed expect the presence of trauma, take care not to replicate it, and understand that it can affect court participants’ feelings and behavior.  Beyond the obvious, which is being respectful, what the social science research on procedural fairness tells us, is that by giving voice to those who appear in court is critical. To give voice requires judges to be effective communicators and to use trauma informed language.