Improving Access to Justice

Although people age at different rates and in different ways, adults over the age of 65 may have some level of physical or mental impairment (see Demographics of the Aging Population). For example, a 2009 study of cognitive functioning in people age 70-79 over eight years found that 30 percent maintained cognitive functioning, but 53 percent experienced some loss of function and 16 percent had major cognitive decline. Physical and mental impairments can impact an older person’s ability to take part fully in court proceedings.

Courts can help ensure full access and participation by older persons with a physical or mental limitation by making accommodations to the courtroom setting, the handling of court hearings, and case and calendar management. The American Bar Association “Recommended Guidelines for State Courts Handling Cases Involving Elder Abuse” recommend that courts “provide accommodations for persons with physical and mental deficiencies and, if necessary, hold hearings in cases involving elder abuse in the setting that best accommodates the needs of the abused older person.” The Eleazer Courtroom at Stetson University is a state-of-art facility that demonstrates how courtrooms can be modified to afford older people an appropriate legal forum.

The following examples of accommodations for older persons with physical or mental impairments have been implemented or recommended by judges, court managers and other professionals working to improve their courts’ responses to elder abuse:

Accommodations to the Courtroom

Equip the courtroom to assist older persons with impairments

hearing amplification
non-glare lighting
magnifying glass
oxygen cylinder

Provide safe waiting areas for older victims and their families

Accommodations in Conducting Hearings

While preserving the defendant’s right of confrontation, consider procedures that assure the elder victim’s testimony is memorialized, such as videotaped examinations and conditional exams.
Consider closing the courtroom to the public to reduce fear and intimidation for older victims and witnesses.
Encourage the use of victim/witness advocates throughout the judicial process. If advocates are not available, train court staff to guide older abused persons through the court process.
Ensure that court staff speak clearly and at an adequate volume for victims and witnesses to hear the proceedings, such as administering the oath to witnesses.
Encourage attorneys to stand close to the witness if there are obvious hearing or sight deficits.
Explain court protocol to older witnesses prior to testifying.
Consider allowing greater latitude for questioning witnesses (e.g., leading questions to avoid unnecessary details) and in offering corroborating evidence.

Accommodations in Case Management and Calendaring

Expedite guardianship and elder abuse cases and avoid unnecessary continuances and delays.
Establish mechanism to identify other pending cases involving the case before the court.
If possible, consolidate ancillary cases involving the same family or victim to create a consistent, efficient, and therapeutic outcome.
Understand gradations of diminished capacity and calendar cases to accommodate medical needs and fluctuations in capacity and mental alertness.
When conducting a domestic violence restraining order calendar, call cases involving elder victims first.

Courthouse Facilities and Role of Technology

Physical access to courthouses and the justice process are real concerns for older persons. Although each individual ages at a different rate, in 2005, 42% of adults over 65 reported some form of functional limitation. Common signs of advanced aging include dimming eyesight, failing hearing, loss of memory, decreased comprehension rate, and physical impairment. These impairments can decrease elderly persons’ abilities to perform daily tasks, decrease mobility, and can affect elders’ communication with others.

Promising Practices and Programs

Promising practices combine physical accommodations and technology, with the goal of ensuring physical access to the courthouse or participation via technology.

Stetson University’s Eleazer Courtroom

The Eleazer Courtroom is the first courtroom specifically designed to be elder-friendly. The courtroom’s design accommodates the physically disabled and enhances audio and visual cues for the hearing and visually impaired. Its features include:

Hearing amplification devices
Different color borders around carpet edges to indicate courtroom pathways
Flat touch screen panel outside the courtroom displaying the courtroom set up and key players
Non buzz, non glare lighting
A witness box located on the floor

Video Testimony

Videotaped testimony is generally used when a witness is found to be either physically or emotionally unable to testify in person. Older individuals, due to severe illness, physical impairment, and other incapacities associated with aging, are unable to be present at court proceedings. These circumstances make the use of videotaped testimony beneficial in elder cases.
Oval: Promising Practice Elder Video-Testimony Legislators in at least two states, California and New York, have introduced amendments to their criminal code that may provide models for other states considering the use of video testimony in cases involving older litigants, victims, and witnesses. The California law authorizes the conditional examination of a witness in a criminal case who may be unavailable at trial. The New York bill acknowledges that elderly victims are often “unable to pursue restitution from the perpetrators” as a result of “advanced age and the length of court proceedings.”

California 1158 allows the examination of a witness to be conducted through a contemporaneous, two-way video conference system if the witness is so sick or infirmed as to be unable to attend the examination in person. This bill was effective January 1, 2009.

New York A06930 would allow for the videotaping of grand jury testimony for elderly persons who are unable to attend because of physical illness, incapacity, or restricted capacity to ambulate or adequately focus attention on events because of advanced age. This bill is pending in committee as of January 2010.

Language Services

Limited English proficiency can be another impediment to access to justice for older adults. Full and meaningful participation in court proceedings can be difficult for any person with limited English proficiency, and these difficulties are exacerbated for older adults who also may be experiencing declining physical or mental capabilities. Courts should be aware of the potential need for language services for older persons, including court interpretation, document translation, and availability of written materials in languages other than English. Numerous resources are available to assist courts in assessing the need for language services and for providing access to those services. See the Court Interpretation Resource Guide, available from the National Center for State Courts, for a compilation of resources. Among these resources is a benchcard that provides information related to the appointment and qualification of court interpreters in domestic violence protection order cases.

Additional Online Resources

Americans with Disabilities Act
10 Tips for Implementing the ABA Recommended Guidelines for Handling Cases Involving Elder Abuse (video)
10 Tips for Judge’s Hearing Cases with Elder Witnesses (video)
Identifying and Responding to Elder Abuse, Neglect, and Exploitation: A Benchcard for Judges