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Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts (Part 2: Site Reports)
Chapter 7: St. John's, Newfoundland (continued)
7.6 Further impacts of lack of representation
The previous section described the impacts on the accused of their appearing before the court without representation. In this section we discuss the impact of self-representation on the key groups involved in the courts – and on court operations.
Information is presented from both the interviews and the data specially collected for the project. It is, however, important to repeat that, where empirical information is presented, it is not presented to draw causal inferences, but simply to describe the events at various stages in the process.
7.6.1 Impacts on victims
A number of those interviewed noted that victims and witnesses were often placed – some would say inappropriately – in very uncomfortable positions when questioned and cross-examined in court by a self-represented accused.
Counsel could serve as a kind of "buffer" between the accused and victim, to the benefit of both.
7.6.2 Impacts on court officers and others
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a. Impacts on Legal Aid and duty counsel
Virtually all interviewees agreed that staff lawyers did not have enough time to spend on cases, being "run off their feet." Some characterized the system as, e.g., "less than minimal," and one that "cannot accommodate the knock on the door," or the needs of the court.
Some interviewees suggested that there was a prevailing impression among Legal Aid clientele that legal aid services were undesirable. This impression may have contributed to the apparent reluctance of some potential clients to apply for legal aid. Reported aspects of this perception included:
- Perceived shortcomings of some staff lawyers in terms of commitment, industriousness or competence.
- Difficulty in reaching staff lawyers by telephone or getting face-to-face meetings with them.
- Not being able to meet with staff lawyers before court appearances.
- Appearing in court alone, after being told that a Legal Aid staff lawyer would be there to help them.
- Pressure from the legal aid system to plead guilty.
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b. Crown attorneys
Crowns generally would not talk to unrepresented accused or negotiate a plea with them. If they felt compelled to, however, they normally conducted such discussions in the presence of the investigating police officer. The Crowns interviewed noted the danger of the accused making admissions during such discussions that would not only be incriminating, but would result in the Crown being called as a witness in court.
The Crowns also took seriously their role as officers of the court, and said they felt the burden of having to make their best efforts to ensure that unfair or tenuously based guilty pleas from unrepresented accused were not entered.
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c. Judges
Among the difficulties noted were a higher number of remands ordered by judges to enable the unrepresented accused to get a lawyer. Judges were put in the awkward position of assisting unrepresented accused as best they could. It was the general perception that most judges "bend over backwards" to protect the unrepresented accused's rights. Also – especially if they felt the accused was likely to get a custodial sentence – the judges would encourage the accused to get legal assistance.
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d. Court administrative personnel
Most interviewees pointed to delays and postponements created by unrepresented accuseds, leading to multiple and useless court appearances. Some court personnel indicated that the court schedule appeared to be driven by time delays built into the Legal Aid application, approval and access system. As noted above, however, Legal Aid officials reported that delays in the legal aid application and approval process were not as severe as they were perceived to be, providing the accused was not interested in delaying the criminal court process. Clerks at the registrar's counter indicated that they spent a great deal of time trying to explain things to unrepresented accused.
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e. Security staff
Few security problems were reported, despite the physical shortcomings of the courthouse. However, unrepresented accused were generally acknowledged to be "more lippy and unruly" without counsel to rein them in.
7.6.3 Overall impacts on court operations
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a. Court workloads: Length and nature of individual appearances
Length of Appearances
In most provincial criminal courts in Canada, only 4-to-10 percent of cases go to trial. The overwhelming majority of appearances for cases are therefore not trials – and, as noted earlier, in St. John's (as in other courts) these appearances are typically in the order of one or two minutes per case. What would, in other situations, seem a very minor increase in the time taken to perform a function at a case appearance, can therefore represent a major increase in judicial, Crown, legal aid, defence counsel and court administration workloads – proportionally and in total.
Our Court Observation data did indicate that concern was present that the unrepresented accused be aware of the opportunities and benefits of having a lawyer – and the expression of that concern did extend the time taken for individual court appearances.
In 10 percent of the appearances involving unrepresented accused, a comment concerning representation was made by either the judge, the accused, the Crown, or duty counsel. Typically, the comment was by the judge, who asked the accused whether s/he had spoken to duty counsel, or instructed the accused to get a lawyer. Interviewees often noted that cases were stood down for a short period of time to allow the accused to talk to duty counsel. The point was made that considerable court time would be saved if duty counsel had more opportunity to talk to the accused before the case came up in court.
With respect to appearances prior to trial
To create our Direct Court Observation file, court observers sat in first appearance and 9:30-10:00 a.m. docket courts and captured the time taken by each case/appearance. The results speak directly to the issue of whether appearances of self-represented accused (in the appearances prior to trial) were longer or shorter than those with other types of representation. As shown in Figure SJ-11, in the first appearance court, appearances in which the accused was unrepresented seemed to be quicker than those for accused represented by either duty counsel or private counsel. (This result applies whether one uses the 25th, 50th or 75th percentile times.) From a court resources perspective, this was perhaps a positive result. However, from an access to justice perspective, there may be reason to be concerned that, when a duty counsel or private counsel was involved in a first appearance, more time was spent dealing with the case.
In the 9:30 to 10:00 a.m. docket courts, the reverse was true. There, appearances in which the accused was unrepresented were longer than those for accused represented by either Legal Aid staff lawyers or private counsel.
An attempt was also made to differentiate between case/appearances that resulted in a remand or a final disposition. Unfortunately, too few case/appearances were present in the database to consider the latter. Nonetheless, as shown in Figure St.J-10, case/appearances that resulted in a remand and in which the accused was self-represented were generally shorter (generally by 50 percent) than those in which the accused was represented by duty counsel, Legal Aid staff lawyers or private counsel.
Figure St.J-10. Case/Appearances: Distribution of Time (seconds) for different types of Case/Appearances by Type of Representation , St. John's
Type of Docket Court Appearance Number at which Plea was Entered 25th/ median/ 75th percentile times for case/appearances represented by Self Duty Counsel Staff Legal Aid Private Counsel All Types of Represen-tation* First appearance 25th=6013512012050th=12024018024075th=225705570570(n=16)(n=76)(n= 13 )(n=105)9:30-10:00 a.m, courts 25th=18012012012050th=24018018018075th=450375405420(n=13)(n=30)(n=24)(n=70)
Result of Appearance Appearance Number at which Plea was Entered 25th/ median/ 75th percentile times for case/appearances represented by Self Duty Counsel Staff Legal Aid Private Counsel All Types of Represen-tation* Remanded or Stood Down 25th=6012012012012050th=12024018018018075th=240540390300315(n=19)(n=63)(n=29)(n=31)(n=142)Final 25th=15030024050th=24042036075th=420720780(n=9)(n=11)(n=27)Source: Direct Court Observation file.
** Less than 10 case/appearances.Another factor that would add to the time taken by a case on a court docket would be the process of "standing down" a case to later in the day to complete consideration of any matters that day. In fact, cases that were self-represented had a substantial likelihood of being stood down – and were more likely to require being stood down than were cases with different types of representation. The relevant likelihoods of having a case stood down were:
- 26 percent for self-represented accused (n = 31) (38 percent in first appearance court, 13 percent in 9:30 docket court);
- 13 percent for accused represented by duty counsel (n = 88) (all but three in first appearance court);
- 21 percent for cases represented by staff legal aid lawyers (n = 34) (all in 9:30 docket court); and
- 10 percent for cases represented by private counsel (n = 40) (all in 9:30 docket court).
With respect to trials
Most interviewees agreed that trials involving unrepresented accused took longer than those of represented persons. Those who did not agree said that unrepresented accused had no idea what questions to ask and did not think to call witnesses or present important arguments in their defence. Virtually all seemed to agree, however, that trials with unrepresented accused were to be avoided if at all possible. Several interviewees noted the "injustices" of unrepresented accused trials and their vulnerability to appeal – "a simple trial will leave 15 grounds for appeal." Unnecessary appeals from trials where, e.g., available defences were not raised, were, therefore, another impact. Other interviewees noted the distress caused to the victim by unrepresented accused trials.
Those who believed that unrepresented accused trials took longer – many said at least twice as long – suggested that unrepresented accused would, at trial, delay the proceedings by:
- requiring lengthy explanations from judges (e.g., of voir dire), with some processes requiring two or three repetitions of the explanation;
- being unable to waive procedures (e.g., preliminary inquiries) without a lengthy explanation; and
- requiring otherwise unnecessary procedures
For other unrepresented accused, trials took a shorter time because the accused did not know how to proceed, and so did little or nothing in his or her defence. Such trials were considered "unnecessary."
Events occurring at individual court appearances
The court observation data also yielded some information about how many appearances (at first appearance and 9:30-10:00 a.m. docket courts) were "productive," in the sense that they resulted in decisions on (or, at least, consideration of) one or more of three matters: namely bail, plea, and
elections. Figure St.J-11 shows the breakdown of courtroom events (or non-events) according to representation status at last appearance.
Cases are broken down according to whether the appearance was or was not a final one in the case.[68] . The columns in the left half of the table show data for "interim" (i.e., non-final) appearances. The columns in the right half of the table show data for final appearances.
The Figure suggests that:
- At non-final appearances, duty counsel cases were the most likely (82 percent) to result in a decision of some kind (most of them bail decisions, but also a significant number of pleas entered). Only 18 percent of duty counsel appearances did not result in a decision of some kind (i.e., column 2 – "no decision").
- At non-final appearances, a little over half of the appearances in self-represented cases (57 percent) and private counsel cases (53 percent) did not result in a decision of some kind.
- At non-final appearances (again in the first appearance and 9:30 a.m. courts), two thirds of appearances handled by other staff lawyers (63 percent) did not result in a decision of some kind.
The numbers of appearances observed in which a final decision as to verdict or sentence was made (i.e., the right-most columns in Figure St.J-11) were too small to suggest distinctions that might exist between different types of representation.
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b. Workloads: Number of appearances per case
Some interviewees suggested that court schedules appeared, at earlier stages at least, to be driven by time delays built into the legal aid application, approval and access system, although Legal Aid officials indicated this was a misconception. Some interviewees were also of the view that there was a certain segment of the accused population who were aware of the delays inherent in the legal aid process, and took advantage of these delays in order to obtain successive postponements of their case. (The reverse phenomenon was also seen – of accused who "just wanted to get it over with," and pled guilty with or without the assistance of counsel.) Multiple postponements for accused who were unrepresented were also reportedly common, as some judges postponed the proceedings in hopes the accused would obtain counsel. Such appearances were costly for the courts and its officers. After a number of unproductive appearances, some judges attempted to move the process forward by decreasing the length of remands to get counsel.
Reasons for remands at early appearances
The Direct Court Observation file provided information to at least initiate an exploration of the reasons for remands – and the results show that a significant percent of the reasons for granting remands were related to obtaining counsel. For instance:
- Of the remands granted in case/appearances, 55 percent were for self-represented accused "to get a Legal Aid certificate" (21 percent), or "to get a lawyer" (36 percent) [n = 14].
- Of the remands granted in case/appearances involving duty counsel, 30 percent were "to get a Legal Aid certificate" (16 percent), "to get a lawyer" (11 percent), or "to a date at which a missing lawyer would be available (3 percent) [n = 61].
If these results were to apply when data from a larger sample of case/appearances were obtained, then they would certainly indicate that remands to obtain legal assistance were a significant source of delays.
Appearances before a plea is entered
A second type of direct indicator of the workloads caused by – and resources required to deal with – cases is the number of court appearances required to complete a case.
A related indicator is the appearance number at which key activities took place.
The Disposed Cases sample yielded valuable information on the number of appearances made by accused who were or were not represented.
Figure St.J-12 begins by showing the appearance number at which the plea was entered for accused who had various types of representation at last appearance. [69]
Figure St.J-12. Disposed Cases: Distribution of Appearance Number at Which Plea was Entered by Type of Representation at Final Appearance, St. John's Appearance Number at which Plea was Entered Represented by All Types of Represen-tation* Self Legal Aid Private Counsel 25th Percentile 1 2 2 1 Median 1 4 3 3 75th Percentile 3 6 6 5 95th Percentile 7 13 13 10 Total Cases 162 146 160 462 Source: Disposed Cases file.
Conventional wisdom suggested that self-represented cases in general generated more appearances before entering a plea. In fact, the opposite seemed to be true:
- Fully half of the unrepresented accused entered a plea at the first appearance, and three quarters pled after three or fewer appearances. (This may be because – as suggested by interviewees – many unrepresented accused pled guilty quickly "just to get it over with.")
- The accused represented by Legal Aid staff lawyers and private counsel made more appearances before entering a plea. At least half of the cases represented by duty counsel/Legal Aid took four appearances to enter a plea.
Total number of appearances before disposition
Figure St.J-13 shows the total number of appearances in the case – according to representation type at last appearance. The data suggest that cases self-represented at first appearance did not require more court appearances overall. More specifically:
- Accused self-represented at the last appearance made fewer appearances in total than did accused with representation at last appearance.
- Half the accused unrepresented at last appearance made only one or two appearances. In comparison, at least half of those accused represented at last appearance by Legal Aid or private counsel required five or more appearances.
- Little difference was seen between the numbers of appearances made by accused represented by Legal Aid staff lawyers and accused represented by private counsel.
Figure St.J-13. Disposed Cases: Distribution of Number of Appearances in Case by Type of Representation at Last Appearance, St. John's Number of Appearances Represented by Total: All Types of Representation Self Legal Aid Private Counsel 25th Percentile 1 3 3 2 Median 2 5 5 4 75th Percentile 3 8 7 6 95th Percentile 7 14 13 12 Maximum 20 27 27 27 Total Cases 162 141 160 467 Source: Disposed Cases file.
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c. Elapsed time for cases to resolve
The Disposed Cases sample also yielded information about the time elapsed between the first and last appearance. This information is important from a due process perspective – however, that perspective yields two potential hypotheses: first, "Justice delayed is justice denied," and second, "Justice rushed is justice crushed."[70] The first concern is relevant to those who feel that delays in obtaining legal representation adversely affect the fairness of the court process and the final outcome. The second concern is especially relevant to those concerned that unrepresented accused may plead out the case early "to get it over with," or because they are not aware of viable legal defences.
As shown in Figure St.J-14:
- As noted above, accused self-represented at last appearance made fewer appearances, and this was reflected in such cases taking less time between first and last appearance than cases represented by Legal Aid staff lawyers or private counsel.
- A significant proportion of unrepresented cases were resolved extremely quickly – a quarter were resolved at first appearance, and half were resolved in less than a week.
- Most cases represented by private counsel at last appearance took slightly less time to be resolved than did legal aid cases (half took 18 weeks or less, while half the legal aid cases took 21 weeks or less).
- A quarter of all cases took over seven months to be resolved.
Figure St.J-14. Disposed Cases: Distribution of Time (in weeks) Between First and Final Appearance by Type of Representation at Final Appearance, St. John's Time (in weeks) between First and Last Appearance when Represented by All Types of Represen-tation Self Legal Aid Private Counsel 25th Percentile 0 8 8 0.4 Median 0.1 21 18 12 75th Percentile 8 43 41 34 95th Percentile 40 77 65 64 Maximum 128 130 192 192 Total Cases 162 141 160 467 Source: Disposed Cases file.
[68] The figure omits three cases in which the accused's representation status was unclear to the court observer.
[69] Because of the limitations of the data, we could not provide analysis based on the type of representation at plea.
[70] The latter phrase was first suggested to one of the authors by a widely respected colleague, Carl Baar.
