Deaf and Hard of Hearing have historically been denied access to justice through discriminatory measures that prevented them from participating in a court trial such as being a witness in a case or serving on a jury. As a result, Federal and State laws were passed to provide them with meaningful access to justice. Unfortunately, many Deaf and Hard of Hearing people are not aware of their rights when it comes to enjoying the services and programs that are offered by the judicial system. Additionally, the legal community isn't always aware of these various rights either.
This article will provide a quick summary of the rights that Deaf and Hard of have under the Americans with Disabilities Act (ADA) and Utah State law which will help educate the general public as well as the legal community about the rights that people with hearing loss have when they come to court. Most importantly, this summary will be helpful to Deaf and Hard of Hearing people across the country. I have also provided laws that are specific to Utah that will be extremely helpful to those who are not aware of their rights in this state.
ADA Summary
- Deaf or Hard of Hearing Individuals cannot be excluded or denied from having access to the Courts: Title II of the ADA provides in relevant part that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132.
- Courts have a duty to ensure that Deaf and Hard of Hearing individuals have communication access to the courts: Under the ADA, “public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.” 28 C.F.R. § 35.160(a)(1)
- Courts have a duty to provide Deaf or Hard of Hearing Individuals with the appropriate axuliary aid or services so that they can have equal opportunity to enjoy the services and benefits provided by the courts: Public entities are required 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)
- The Court’s duty to provide an effective communication will depend on the situation: The kinds of “auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.” 28 C.F.R. § 35.160(b)(2)
- Auxiliary Aids and Services Defined: Title II of the ADA explains that “auxiliary aids and services” means to include “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.” Id.
Utah State Law Summary
- Right To An Interpreter In A Criminal or Civil Proceeding: Any “hearing-impaired person who is a party or witness at any stage of any judicial or quasi-judicial proceeding in this state or in its political subdivisions, including civil and criminal court proceedings,” the appointing authority shall appoint and pay for a qualified interpreter to interpret the proceedings to the hearing-impaired person and to interpret the hearing-impaired person's testimony. If the hearing-impaired person does not understand sign language, the appointing authority shall take necessary steps to ensure that the hearing-impaired person may effectively and accurately communicate in the proceeding. (See 78B-1-202(1))
- Parents of Juveniles have a right to an interpreter: If a juvenile whose parent or parents are hearing-impaired is brought before a court for any reason whatsoever, the court shall appoint and pay for a qualified interpreter to interpret the proceedings to the hearing-impaired parent and to interpret the hearing-impaired parent's testimony. (See 78B-1-202(2))
- Deaf or Hard of Hearing Individuals have a right to an interpreter in state administrative proceedings: “In any hearing, proceeding, or other program or activity of any department, board, licensing authority, commission, or administrative agency of the state or of its political subdivisions, the appointing authority shall appoint and pay for a qualified interpreter for the hearing-impaired participants if the interpreter is not otherwise compensated for those services.” (See 78B-1-202(2))
- Deaf or Hard of Hearing Individuals have a right to an interpreter when testifying before a legislative body: “If a hearing-impaired person is a witness before any legislative committee or subcommittee, or legislative research or interim committee or subcommittee or commission authorized by the state Legislature or by the legislative body of any political subdivision of the state, the appointing authority shall appoint and pay for a qualified interpreter to interpret the proceedings to the hearing-impaired person and to interpret the hearing-impaired person's testimony.” (See 78B-1-202(3))
- Where A Deaf or Hard of Hearing Exercises His 6th Amendment Right to Counsel, he also has a right to have an interpreter present with his court appointed attorney: If it is the policy and practice of a court of this state or of its political subdivisions to appoint counsel for indigent people, the appointing authority shall appoint and pay for a qualified interpreter or other necessary services for hearing-impaired, indigent people to assist in communication with counsel in all phases of the preparation and presentation of the case. (See 78B-1-202(3))
- Jury Duty: The courts in Utah are to provide appropriate auxiliary aids and services, including qualified interpreters, when necessary to provide an individual with a disability an opportunity to serve as a juror. (See Settlement Agreement between the United States of America and The Utah Administrative Office of the Courts, Department of Justice 1993[1].
Why Is
It Important For Deaf & Hard Of Hearing Individuals To Have Access To Court Ordered Services?
The reason why is important for
Deaf and Hard of Hearing Individuals to have access to court ordered services
is because there has been a “pattern of unconstitutional treatment in the
administration of justice in our nation’s history towards individuals with a
hearing loss.”[2] When
Congress was considering passing the Americans With Disabilities Act of 1990 (ADA), they discovered that
that many individuals, in many States across the country, were being excluded
from "courthouses and court proceedings by reason of their disabilities.”[3] A
task force established by Congress “heard numerous examples of the exclusion of
persons with disabilities from state judicial services and programs, including
exclusion of persons with visual impairments and hearing impairments from jury
service [and] failure of state and local
governments to provide interpretive services for the hearing impaired.”[4]
When Congress finally passed the ADA, it recognized that
“failure to accommodate persons with disabilities will often have the same
practical effect as outright exclusion.”[5] As
a result, the Supreme Court in Tennessee
v. Lane recognized that it “is perfectly consistent with the
well-established due process principle that, ‘within the limits of
practicability, a State must afford to all individuals a meaningful opportunity
to be heard’ in its courts.”[6]
As a result, the inability to
have access to court is a violation of a Deaf or Hard of Hearing person’s
federal and state constitution as well as federal and state law right to participate
in the judicial process either as a plaintiff, defendant, witness, or jury
member. Without the necessary accommodation, meaningful and crucial information
is missed which may lead to severe and unjustified consequences to the administration
of justice. Deaf and Hard of Hearing individuals who work as attorneys or
judges also have rights guaranteed by federal and state constitution as well as
federal and state law that guarantees them the right to have the appropriate
accommodations necessary in order to work effectively in court. When a denial
of accommodations has occurred, it is an effective denial of access to the
courts which results in grave injury to the deprived Deaf or Hard of Hearing
individual.
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