Giving A Presentation On Living Wills In St. George

I will be giving a presentation regarding wills in at the Deaf Center in St. George, Utah on October 24, 2013. See the flyer below for more information. 

Can Deaf People Serve On A Jury?

One of the most common and popular misconceptions that exists in America and around the world is that Deaf people cannot serve on a jury. In America, Deaf people have both federal and state rights to serve on a jury. Internationally, Deaf people want to serve on a jury but current laws prevent them from doing so. 

Deaf People Can Serve On A Jury In America

In America, Deaf people do have a right to be on a jury and have been serving on juries since the Americans With Disabilities Act (ADA) was first enacted by Congress and signed into law by President George H.W. Bush on July 26, 1990. 

According to one statistic, there are 36 million people in this country with some degree of hearing loss. That means that there is a high probability that they will be involved in the court system either as a witness, a jury member or a litigant. Some Deaf and Hard of Hearing individuals will work as attorneys in the court room.

Under Title II of the ADA, courts are not allowed to exclude qualified individuals by reason of their disability from "the benefits of the services, programs, or activities of a public entity." 42 U.S.C. § 12132. That means, under federal law, a court cannot exclude a Deaf individual from serving on the jury because they are Deaf. Additionally, the ADA requires courts to take the "appropriate steps" to provide communication and/or language access to Deaf and Hard of Hearing individuals. 28 C.F.R. § 35.160(a)(1). The ADA outlines what appropriate steps a court may take to ensure effective communications by requiring courts to “furnish appropriate auxiliary aids and services where necessary” to provide “applicants” who are “qualified individuals with disabilities” an “equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.” 28 C.F.R. § 35.160(b)(1). Title II of the ADA explains that “auxiliary aids and services” includes Sign Language interpreters. The ADA's describes Sign Language Interpreters as “Qualified interpreters on-site.” 28 C.F.R. § 35.104(1). A qualified on site interpreter is defined as someone who “is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.” 28 C.F.R. § 35.160(b)(2)

In plain English, under Title II of the ADA, a Deaf person cannot be excluded from jury duty because of simply because they are Deaf. Courts are required to ensure that Deaf people have an equal opportunity to serve on a jury and that Deaf people are given that opportunity by providing a qualified sign language interpreter for the potential Deaf juror. 

Deaf people who wish to serve on a jury can make a reasonable accommodation requiest to have the court provide auxiliary aides such as sign language interpreter, cued speech interpreter, or Communication Access Real-time Translation (CART). These aren't the only auxiliary aids a Deaf person could ask for. There are others. However, these auxiliary aids help Deaf and Hard of Hearing individuals to perform their duties as members of the jury. Its also important to know that Federal law also makes these auxiliary aids to Deaf and Hard of Hearing witnesses, litigants, attorneys or Deaf people who wish to come and observe a trial.

Additionally, Certified Deaf Interpreters (CDIs) could also assist a potential jury member based on the statutory language of Title II of the ADA. According to The Registry of Interpreters for the Deaf (RID),  a “Certified Deaf Interpreter (CDI) is an individual who is deaf or hard of hearing and has been certified by the Registry of Interpreters for the Deaf as an interpreter.” Additionally, many states statues allow for CDIs to work in court by describing them as “intermediary interpreter” or “relay interpreter" or "Certified Deaf Interpreter."

In addition to federal law, many states, such as Texas, Florida and California, have passed laws allowing for Deaf individuals to sit on a jury. Moreover, many courts, such as the 9th Circuit Court of Appeals, have rules or handbooks that allows Deaf people to serve on a jury and provide instructions for what to do in the event a Deaf person does serve on a jury. Many organizations such as the National Consortium of Interpreter Education Center (NCIEC) exist to assist Judges, lawyers and other employees of the court in following the proper steps in providing an Sign Language Interpreter.

Deaf people have done well in serving on a jury. Cantrece Simmons was praised for her service as the first Deaf individual to serve on a jury in the City of Baltimore's court system.  Debbe Hagner was one of six jurors to serve on a jury in the Pasco County Circuit Cour on a matter involving an automobile accident. Marcia Finisdore was the first Deaf individual to sit on a jury in Delaware County located in Pennsylvania. Keith Davis was deaf individual who served as juror on a murder case in Atlanta. Karen Smith was also deaf individual who served as juror on a criminal case in Rochester, Minnesota. For a personal perspective on what it is like to be a deaf juror in a civil and criminal case, see Sheila Mentkowski’s blog post.

In one highly unusual case, the Public Defender's office in Riverside, California asked to allow for all-Deaf jury to sit on a case where the Deaf Defendant was accused of raping a Deaf victim. A majority of the witnesses are Deaf and communicate in American Sign Language. The Judge denied the Defense's request.

Despite the protections provided by Federal and state laws, Deaf people in America sometimes face discrimination at the jury box because of their Deafness. For example, David Branfield was dismissed from serving on a jury in Syracuse, New York because of his hearing loss. 

In Ohio, the Defense in a criminal trial tried to remove a Deaf juror, Linda Leow-Johannsen, from serving on the jury because of her Deafness. What made the Ohio case more appalling was that the Defense didn't dismiss her by using one of their four peremptory challenges but asked the Judge to dismiss her after they had gone through all of their peremptory challenges because of her hearing loss. Judge Richard Markus denied the Defense's request.

Some legislators in the North Carolina House of Representatives objected to the idea of allowing Deaf and Hard of Hearing individuals from serving on a jury. Some of the legislator's comments and reasons for why a Deaf person shouldn't serve on a jury were jaw dropping.

While Deaf people in America can serve on a jury, it is still not easy for Deaf people to do so. It is clear that many unnecessary obstacles exist in in our country that need to be removed.

An International Look at Deaf People's Right to Serve on A Jury

In other countries around the world, Deaf people are not allowed to serve on a jury because of the fact that they are Deaf. Another reason why Deaf people are not allowed to sit on a jury is because of misconceptions many people have about Deaf people. In some countries, there are cultural reasons for why a Deaf people cannot serve on a jury. Finally, some countries do not have the resources to provide Deaf people with Sign Language interpreters or other services that might allow them to serve on a jury.

In England, Deaf people struggle with being allowed to sit on a jury. For example, Emma Ferguson-Coleman  was a Deaf woman who received her jury service summons and informed the court that she needed a British Sign Language (BSL). The Court refused to allow her to sit on the jury because of her Deafness and that her Deafness would violate the court's procedural rule that jurors are allowed to be present in the jury room (an interpreter would constitute a ’13th person’).

Deaf people in Ireland also struggle for the right to sit on a jury. Damien Owens, was denied to sit on a jury because the law in Ireland does not allow a 13th person such as a Irish Sign Language (ISL) interpreter to be present in a jury room during its confidential deliberations. 

In another case, Joan Clarke, who is Deaf, challenged the Galway County Registrar's decision to exclude her from jury service because she is Deaf and won. Judge Daniel O'Keeffe in the High Court ruled that the Registrar made the wrong decision to exclude her. He also found that there could be no blanket ban on deaf people serving on juries. Unfortunately, the Judge also ruled that sign language interpreters could not be allowed into a jury room (presumably because an Irish Sign Language (ISL) interpreter would constitute a 13th person) which means that an Irish Deaf person who relies on an ISL interpreter) could be excluded from the jury. 

However, in a separate case in Ireland, Judge Paul Carney, allowed Senan Dunne, who is Deaf, to sit on the jury. He found a way around the "13th person rule" by requring the ISL interpreter to take an oath of confidentiality. Although Mr. Dunne had to stand down from the jury, he was allowed to remain on the jury panel.

In Australia, Deaf people also desire to have the right to sit on a jury. Gaye Lyons, a Deaf woman from Queensland was excluded from serving on a jury because having an Australian Sign Language (Auslan) interpreter would violate the "13th person rule. " The NSW Law Reform Commission, which is an independent statutory body constituted under the Law Reform Commission Act 1967 (NSW), commissioned a study to look at whether or not Deaf people can serve on a jury.

Solutions: Ideas For Reform In America and Abroad

There are wide range of options and solutions that can open the doors to allowing Deaf people to serve on a jury.

The best way to quickly open the door to allowing Deaf people to serve on juries is through judicial reform as well as updating laws and statues. Elected officials and members of the judicial system both in America and other countries can easily make the necessary legal changes. For example, in many nations that were formally a part of the British empire could abolish the "13th person rule" if additional rules and regulations for Sign Interpreters were implemented. (See below).

In doing research about Deaf people's right to sit on a jury in other countries outside of the United States, one of the common concerns that comes up on the issue of Deaf people serving on a jury in another country is the ethical duties of the Sign Interpreters. In America, ASL interpreters (as well as CDIs) abide by a code of ethics which includes the duty to keep information confidential. Other nations would do well to establish rules of conduct and ethics for interpreters working in the court room. 

Other rules, regulations, polices and procedures that are found in America in can serve as a model for other nations who have interpreters working in court. For example, an interpreter cannot disclose what she knows unless they are required to either by law or by court decree. Moreover, having a qualified ASL interpreter who is interpreting for a Deaf client who is meeting with their attorney does not destroy the attorney client confidentiality. Additionally, in many states, interpreters may have to undergo further testing and training to be come certified to interpret in court and will have additional obligations to abide by. 

Another area of improvement is improving the training and education of interpreters. Also, requiring interpreters to meet additional standards and undergo further training and education that would help them to be specialized in courtroom interpreting. 

Another solution for improving Deaf people's access to the courts is to invest in technology. There are some amazing developments that will help Deaf people and improve communications. It will help keep court costs down and improve access for Deaf people and allow them to sit on a jury.

The U.S. can serve as a model for other countries who wish to provide the resources, infrastructure, education, funding and statutory mechanisms to allow Deaf people to serve on a jury. Allowing Deaf people will strengthen the judicial system and can still protect the rights of individuals who are involved in the court system. Of course, America isn't perfect. We have a long way to go in penal reform, improving interactions with between police and law enforcement and providing greater access to the judicial system for Deaf people.

Conclusion

Deaf people should be able to serve on a jury.  With modern technology and capable and well trained Sign Language interpreters, they can successfully uphold their duties as members of the jury. Justice is not justice if members of the community are excluded from the judicial system merely because of their disability.