The Final Report on Early Case Consideration of the Steering Committee on Justice Efficiencies and Access to the Justice System

Changing Legal Culture

In the early 1970s the United States Congress and several state legislatures enacted laws requiring that criminal cases be resolved quickly. These “ speedy trial ” acts typically set deadlines for the completion of each stage of the proceedings. If a deadline was not met, the case was dismissed. Despite the clear, unambiguous mandates in these laws, few shortened disposition time.[16] In the jurisdictions where time limits actually reduced delays, one or more judges were committed to reducing delays. By contrast, in court systems where speedy trial acts failed, they were often enacted over the strong objections of judges, lawyers and other justice system actors. This has led those who closely watched the American experience to conclude that no program can succeed without the active participation of officials directly involved in administering justice. Courts are governed by a complex set of formal rules and informal practices. Judges, lawyers, and others who work in the court system know these norms far better than any outsider and can use this information advantage to defeat reforms with which they disagree.

As it became clear that structural reforms were having little effect on disposition times, reformers began to re-examine the assumption that judges, lawyers and other court staff were inert actors who performed whatever tasks they were assigned. Empirical studies revealed that delays varied enormously across courts with almost identical structures, caseloads and personnel levels. These studies established that delay was not an external phenomenon thrust on unwilling participants but a consequence of behavior of judges, counsel, accused, police and other participants in the justice system.

The American case flow management literature indicates a correlation between timeliness in case processing times and effective advocacy. Research demonstrates that meaningful and effective advocacy, itself an integral component of quality case processing, is more likely to occur in court systems where case resolution is most timely.[17] Since the relative pace of litigation depends largely on the local legal culture and attitudes of judges, prosecutors and defence counsel, in the more expeditious courts, personnel have more efficient work orientations, including clear case processing goals.[18]

In studies of corporate innovation and excellence, as well as of courts and criminal justice agencies that succeed in attaining significant delay reduction goals, leadership emerges as a critically important goal. When practitioners in successful courts were asked about reasons for the court's effectiveness, one of the most frequent responses was a reference to the leadership qualities of the chief judge. The specific leadership qualities mentioned in this context varied, but generally included references to the chief judge's vision, persistence, personality and political skills.[19] Lasting success, however, requires more than one judicial leader. All participants in the criminal justice system have a stake in ensuring that the system responds to change and is effective in dealing with those that come before or into the system. The judiciary particularly stands in a unique position to bring various participants and parties together to explore more effective ways of handling criminal matters.

Meaningful goals from inception to disposition and for specific stages of process are also integral to effective case flow management systems. Especially important are time standards that shape expectations with respect to the maximum length of time appropriate for particular types of cases in particular court locations. In the absence of clear goals, practitioners have no way of measuring their own (or their organizations) effectiveness in managing their caseload.[20] These goals must be developed taking into consideration local factors. One size does not necessarily fit all. Each court location, region, and jurisdiction must consider what procedures and protocols will work best to effectively and efficiently streamline the front end of the criminal justice systems.

In summary, to bring about meaningful change and defeat systemic delay at the early stages of the trial process, all participants in the criminal justice system must closely examine and, if necessary, modify the way they go about their work. Police and prosecutors smust adopt more focused charging practices and be in a position to provide defence disclosure at the earliest stages of the process. Prosecution and defence counsel must reject a culture of last-minute decisions that sees cases warehoused between hearings and be more receptive to reasonable pretrial resolutions. Finally, judges must be willing to play a greater leadership role by becoming engaged earlier in the life of a file and assuming more “ownership” of its progress through the system.

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