3. Can people who are blind serve as jurors?
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INTRODUCTION
3.1 Blindness, because it has much less effect on the ability to communicate, is less prone to the negative stereotyping that has at times been associated with deafness. Issues that arise in regard to whether the blind should serve as jurors are comparatively straightforward.
BLIND AND VISION IMPAIRED
3.2 The terms of this inquiry refer to people who are blind or have significant sight impairment. Approximately 300,000 Australians are estimated to have some degree of vision impairment. Low vision is a term used to refer to significantly reduced vision that may be severe enough to affect performance, and that cannot be corrected by eyeglasses.1 The majority of people who are legally blind are included within this classification. A legal definition of blindness exists for the purposes of establishing eligibility for government benefits, but its technical nature does not assist this inquiry.2 The Commission is concerned here with people with low vision or total blindness who are unable using any means to recognise a face or read printed or handwritten documents.
REASONABLE ADJUSTMENTS
3.3 In DP 46 we discussed the kinds of reasonable adjustments that could be used to assist a blind juror.3 Professor Ron McCallum,4 Dean of Law at the University of Sydney and himself blind since infancy, stated:
First, much of the documentary evidence could be read out in open court. Second, it would be possible to have the documentary evidence printed in Braille. Computer programs exist which virtually instantaneously translate printed documents in electronic form into braille documents in electronic form which can be printed out in braille by a braille printer. Second, most printed documents are to be found in electronic format, and through the use of computer-based adaptive technology these documents can be read out to blind jurors using high quality synthetic speech. Third, documents (other than handwritten documents) which are not in electronic form can be scanned by programs such as the Kurzweil reading program, and read out in high quality synthetic speech. Finally, documentary evidence could be read onto tape, perhaps by the Judge’s Associate, and the tape could be given to a blind juror to listen to, and if the documents went into the jury room, the tape recording could go in as well.
3.4 The Royal Blind Society (“RBS”) states that the provision of reasonable adjustments by courts would be appropriate and, in its view, “less of an issue than most people perceive”.5 In most cases, according to the RBS, the only support required will be a sighted guide within the vicinity of the court, the provision of written material in an appropriate format, and descriptions of visual evidence. Where assistive technology is required, such as for reading documents or taking notes, most people would prefer using their own equipment. On occasion it might be necessary to accommodate guide dogs in the courtroom but this is unlikely to cause a problem.
3.5 Correspondence with personnel working within various US courts, cited in the previous chapter, dealt almost entirely with issues relating to jury service by people who are deaf. However some mention was made of accommodations for the blind. These include the provision of juror handbooks and information sheets in braille and audio format, and people acting as assistants to blind jurors, for example as readers or guides.6
3.6 In chapter 2 we referred to the New Zealand case in 2005 in which a person who is deaf successfully completed jury service.7 Since then a blind juror has also been empanelled, without challenge from counsel.8 According to a newspaper account, the presiding judge:
asked [the juror] if there was anything the court could do to help accommodate him and his guide dog, but the man says that all the visual exhibits presented to the jury were described verbally in detail. A female juror volunteered to sit next to the man throughout the four-day trial, offering minor assistance such as telling him the number of an exhibit. … The man said he had “no problems whatsoever” carrying out his jury duty.
ISSUES
3.7 A juror who is blind or has low vision has the same access to oral testimony, instructions, discussion and deliberation as any other hearing juror. The receiving and comprehension of evidence and instructions, discussed in the previous chapter, are irrelevant here except to the extent they are relevant to any juror, with or without hearing or sight. Furthermore, a guide dog could not be regarded as a stranger in the jury room. The main issues are, therefore, confined to the inability to observe visual evidence effectively and the demeanour of witnesses.
Visual evidence
3.8 The point has been made previously9 that there will be trials in which crucial evidence will be visual in nature, thus precluding a blind person from sitting on the jury. However, the mere fact that there is evidence in the form of documents, diagrams, photographs and so on need not result in automatic exclusion of a blind juror, as in many cases there will be no issue as to its interpretation, and the content can be conveyed successfully through description or using technology. In the Commission’s view the use of reasonable adjustments provide scope for facilitating the inclusion of a person who is blind or has low vision on the jury panel.
Demeanour
3.9 In DP 46 we discussed the meaning of demeanour and the importance it has been accorded in common law.10 We also noted that a number of judicial pronouncements have downplayed its significance as a determinant of credibility in favour of more objective evidence.11 In Australia recent cases continue this trend. In Fox v Percy12 the High Court noted that while it is true that for a very long time judges in appellate courts have given deference to decisions of trial judges because of their opportunity to assess the appearance of witnesses:
…it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. … Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.
3.10 Demeanour includes not only observable phenomena but also aspects of speech. For example there may be difficulties in relation to the significance of hesitations in speech,13 while facial tics, speech impediments, Tourette’s syndrome and so on may also give rise to misleading conclusions. Where these do exist as inherent medical conditions, competent counsel will establish that fact when calling the witness, without leaving it to uncertain speculation, a course that is as desirable for sighted jurors as it is for the blind. Speech may convey a meaning other than the literal, for example where inflexions or facial gestures turn a “yes” into a “no”.14 However competent cross-examination should detect any such indication and pursue it to determine what the witness is, in fact, intending to convey.
3.11 A recent amendment15 to the Criminal Procedure Act 1986 (NSW) accepts that the principles concerning the capacity of jurors to assess demeanour visually and aurally can be relaxed in some circumstances without necessarily impinging on the fairness of the trial. In a retrial of sexual assault proceedings the prosecutor may now tender as evidence in the new trial a record of the complainant’s original evidence.16 If such a record is admitted, the complainant is not compellable to give further evidence.17 The record of evidence must be the best available,18 that is:
(a) an audio visual recording of the evidence, or
(b) if an audio visual recording of the evidence is not available, an audio recording of the evidence, or
(c) if neither an audio visual recording nor an audio recording of the evidence is available, a transcript of the evidence.
In the recent case of R v Skaf19 the best available evidence was the transcript of the original hearing, read to the jury by two representatives of the Director of Public Prosecutions, one as questioner and the other as witness.20
3.12 Scientific research has also investigated demeanour in terms of what it reveals regarding truthfulness and deception. Psychologists Vrij and Easton21 state that:
[m]ore than 30 years of deception research convincingly demonstrates that there is no such thing as a typical deceptive response. In other words, there is nothing as simple and obvious as Pinocchio’s growing nose, so lie detection is difficult and research also demonstrates that people generally are poor lie detectors.
The authors note that even in studies in which judges were invited to try and detect truth and lies told by people not known to them, the total accuracy rate was 56.6%, or “only just better than chance”.22
3.13 According to one view, people who deliberately lie attempt to control their verbal and nonverbal responses by focusing on those cues that fit cultural stereotypes.23 For example Vrij and Easton note the:
surprising finding that gaze behaviour is unrelated to deception. “Surprising” because both lay persons and professional lie catchers tend to hold strong beliefs that liars typically look away. They don’t. Most liars are as likely to look away as truth tellers. … The great communicative potential of the eyes means that people are relatively highly practised at using and therefore controlling gaze.
Additionally, it is well recognised that it is regarded as impolite in Aboriginal culture to maintain fixed eye contact.
3.14 The argument that an inability to observe demeanour should disqualify a blind or deaf person from jury service contains at least three assumptions; first, that demeanour always conveys information that aids in the interpretation of what has been consciously communicated; secondly, that the witness to another’s demeanour can interpret it accurately; and thirdly, that blind and deaf jurors are deprived of the opportunity of detecting demeanour.
3.15 As the foregoing discussion shows, the first two assumptions are questionable. While it can be important, the value of observable demeanour evidence, according to a substantial body of research, appears to have been overstated and, as such, accorded too much value as a tool for judging credibility. In any event judges usually give a general direction to the jury that while demeanour can be taken into account the reliance placed upon it must be kept in balance with other considerations. Consequently it is an inappropriate determinant in the issue of eligibility for jury service.
3.16 Finally, as the RBS stated:24
[o]ne of the main misconceptions … is that people who are blind will not be able to observe the demeanour of witnesses. We accept that people who are blind will not be able to observe all visual aspects of a witness’s demeanour but we assert that there are many aspects of a person’s demeanour which are non-visual and which are just as important and relevant.
As DP 46 pointed out, the deaf or blind juror will, like most others, have found ways of encountering, and coping with, everyday life, including the attempt to assess the truthfulness of what people say to them.25
Cost of trial
3.17 Additional expense occasioned by the use of blind jurors would likely be minimal.26 In any event, the public policy issues mentioned in relation to deaf jurors27 would also apply here.
CONCLUSION
3.18 In those trials where an individual’s unaided ability to access visual evidence is not crucial, it is difficult to understand why people who are blind should be precluded from serving as jurors. In most cases it is highly likely that such visual evidence as is adduced can be made accessible through using reasonable adjustments. Accordingly, the blind should not be subject to blanket ineligibility from jury service. Ineligibility should be considered on a case-by-case basis, depending on the particular circumstances of the trial, including the nature of the evidence to be presented, the issues arising, whether a view of the crime scene or a demonstration is critical to an evaluation of the evidence and whether sufficient accommodation can be made to compensate for the juror’s lack of sight. This could include the printing of documents in Braille, or their conversion into audio format, or even to the provision of readers.
FOOTNOTES
1. Association for the Blind of Western Australia, Resources, “Understanding Blindness” (as at 16 January 2006) «www.abwa.asn.au/understandingblindness.html»; Low Vision Online, “Low Vision – definitions” (as at 16 January 2006) «www.lowvisiononline.unimelb.edu.au/LowVision/LowVision_def.htm».
2. Australia, Department of Family and Community Services, Guide to Social Security Law, “3.6.2.40 Assessment of Blindness for DSP” (as at 16 January 2006) «www.facs.gov.au/guide/ssguide/36240.htm».
3. DP 46 at para 3.7, 4.17-4.18.
4. R McCallum, Submission 2 at 2-3.
5. Royal Blind Society, Submission at 1.
6. S Bailey-Jones, District of Columbia Superior Court, information supplied 30 March 2005 and 16 June 2005; P Meraz, Sacraamento Jury Commissioner, information supplied 18 May 2005; R Miller, Indiana Supreme Court, information supplied 18 May 2005.
7. Para 2.78.
8. M Cummings, “Justice Truly Blind in Manawatu Case” Manawatu Standard (20 February 2006) «www.stuff.co.nz/stuff/print/0,1478,3578566a12855,00.html»
9. DP 46 at para 3.4-3.5.
10. See para 3.11-3.12.
11. See para 3.15-3.17.
12. (2003) 214 CLR 118 at 128-129. See also Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 (NSW CA).
13. Coombe v Bessell (Tasmanian Supreme Court, A40/1994, Zeeman J, 17 and 31 May 1994, unreported) at 1-2.
14. DP 46 at para 3.13.
15. Criminal Procedure Amendment (Evidence) Act 2005 (NSW).
16. Criminal Procedure Act 1986 (NSW) s 306B(1).
17. Criminal Procedure Act 1986 (NSW) s 306C.
18. Criminal Procedure Act 1986 (NSW) s 306E(1), (2).
19. [2006] NSWSC 394.
20. In her judgment Matthews AJ commented that to her observation the process went very smoothly: [2006] NSWSC 394 at para 12.
21. A Vrij and S Easton, “Fact or Fiction? Verbal and Behavioural Clues to Detect Deception” (2002) 70 (20 Feb) Medico-Legal Journal 29.
22. Vrij and Easton at 29.
23. J E Hocking and D G Leathers quoted in Vrij and Easton.
24. Royal Blind Society, Submission at 4.
25. Para 3.10.
26. Para 3.3-3.4.
27. Para 2.63.
