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Where am I now? Lawlink > Homepage > Research Report 14 - Deaf jurors' access to court proceedings via sign language interpreting: an investigation (by Jemina Napier, David Spencer and Joseph Sabolcec)
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Research Report 14 - Deaf jurors' access to court proceedings via sign language interpreting: an investigation (by Jemina Napier, David Spencer and Joseph Sabolcec)
Updates and background for this project (Digest) A project funded by the NSW Law Reform Commission and
the Macquarie University External Collaborative Grant Scheme.
1. Introduction
BACKGROUND
The participation in juries by representatives of the community is a fundamental element of the administration of justice, and thus serves the interests of the State. Jury service, like voting, is a right and obligation of citizenship [of Australia]…1
The institution of trial by jury, although not without critics, has been regarded for centuries as a fundamental part of the administration of justice. Its features are credited with helping to secure the protection of the community from the tyranny of absolutism and the self-interest of the powerful, while reflecting democratic ideals and representing current social values and attitudes…The jury is thus a group of “ordinary” people, disinterested in the outcome of the trial, and independent of powerful and influential social forces.2
1.1 In most English-speaking countries, such as Australia and the United Kingdom, non-English speakers are not allowed to serve as jurors as they cannot access the language of the court. So what about deaf people? Some may be competent English users, but not able to access the language of the court due to not being able to hear it. But technically they could access all other written information in the form of evidence, testimonies, and written confessions.
1.2 Currently, deaf people cannot serve as jurors in Australia or in most other countries in the world. Debates over whether deaf people should be permitted to serve as jurors have long featured in legal journals.3 Current policy in the majority of countries states that deaf people are not capable of serving as jurors, due to their ‘incapacity’ or disability, that is, their hearing loss.
1.3 The United States has led the way with respect to law reform on this issue, with many States now allowing deaf people to serve as jurors, and with provisions for interpreters for deaf jurors.4 Deaf people cannot serve as jurors in British or Irish criminal courts due to legal issues with having a thirteenth person (ie, interpreter) in the jury room;5 however, a deaf woman has served as a juror in a British Coroner’s Court.6
1.4 With the introduction of the New Zealand Sign Language (NZSL) Bill before parliament in 20057 to have NZSL recognised as an official language and for use in legal proceedings, a deaf man residing in New Zealand was permitted to serve as a juror for the first time in a tax fraud case.8 In an interview with the New Zealand National Equal Opportunities Network, David McKee stated that he had been “quite excited about the jury duty because [he] knew [he]’d be breaking down barriers and opening doors for other deaf people who in the future wanted to participate”.9 He also acknowledged that the judge might have been open to having him on the jury, and interpreters in the court and jury room, because of the NZSL Bill.10
LAW REFORM IN NEW SOUTH WALES, AUSTRALIA
1.5 Given that the notion of deaf people serving as jurors is obviously on the law reform agenda in some countries, the consideration given in Australia to this issue is timely. In March 2002, the New South Wales (NSW)11 Attorney General requested the New South Wales Law Reform Commission (NSWLRC) to investigate whether deaf and blind persons ought to be able to serve on juries in criminal courts. The terms of reference were:
To inquire into and to report on whether persons who are profoundly deaf or have a significant hearing or sight impairment should be able to serve as jurors in New South Wales and, if so, in what circumstances. In undertaking this review, the Commission should have regard to the Anti-Discrimination Act 1977 (NSW), the Disability Discrimination Act 1992 (Commonwealth), and the need to maintain confidence in the administration of justice in New South Wales.12
1.6 The NSWLRC established a reference group comprising Phillip French, Graeme Innes, Professor Ron McCallum, Alastair McEwin and Alison Herridge. A Discussion Paper outlining the issues to be considered was published in 2004.13 The Discussion Paper invited submissions from interested people and organisations.
1.7 In reviewing law reform concerning deaf jurors in other countries, the Discussion Paper noted:
5.23 One issue relating to jury service by deaf people is that the presence of a sign language interpreter in the deliberation room violates the rule excluding persons other than the jurors in that room. In Eckstein v Kirby, the US District Court ruled that it did, noting that secrecy must be preserved to guarantee a vigorous and candid discussion of the issues by the jurors. However, some courts have held that the rule excluding persons other than jurors from the jury room during deliberations does not apply to sign language interpreters based on a number of reasons. First, the rule is said to apply in reality only to officers of the court such as bailiffs, judges or counsel, who because of their (perceived or actual) capacity to influence the jurors, might inhibit free discussion. This danger would not arise in the case of an interpreter who performs a purely mechanical function, much like a hearing aid, microphone or typewriter. Absent any evidence of inappropriate behaviour on the part of an interpreter, the jurors are unlikely to perceive him or her as having any influence on or capacity to pressure any of them. Also, the judge may give instructions to both the interpreter and the jury that participation by the former is improper. Secondly, jury secrecy would not be endangered since there are legal and ethical rules preventing interpreters from revealing confidences made during jury deliberations. Finally, practical experience has shown that none of the anticipated problems have arisen. In those jurisdictions where deaf people have been sworn, interpreters accompanied the jurors in the jury room, and there has never been a breach of confidentiality, nor problems with the interpreter breaching the oath of non-involvement, nor any problem with respect to the panel not being able effectively to deliberate because of the presence of the interpreter.
5.24 A number of States have adopted legislation or court rules allowing an interpreter to accompany a deaf juror during deliberations. Some contain safeguards such as specifying that the interpreter will only act to communicate for and to the juror with the disability, or should refrain from personal interjection and uphold the secrecy of the proceeding.14
1.8 Thus, early on, the presence of an interpreter as a thirteenth person in the jury room was not considered necessarily to be an issue. However, although it was accepted that signed language interpreters are regularly used in criminal courts in order to provide witnesses, complainants and defendants with access to court proceedings, it was felt that jurors require a different level of access to information. Jurors do not just need access to the proceedings in a courtroom, they need to make informed decisions about the status of a person’s guilt in committing a crime, and need to be able to participate in jury deliberations. The American case, People v Guzman,15 pointed out:
At a minimum, a juror must be able to understand all of the evidence presented, evaluate that evidence in a rational manner, communicate effectively with the other jurors during deliberations, and comprehend the applicable legal principles, as instructed by the court.16
1.9 Given this difference, concerns were raised in relation to the interpretation of evidence, interpretation of the submissions of counsel, interpretation of a judge’s directions to the jury, and interpretation of jury room deliberations. Essentially, questions were raised about whether deaf people can sufficiently comprehend legal proceedings when relying on a signed language interpreter, in order to get full access to the facts of a case and thus make an informed decision about a person’s guilt.
1.10 The notion of whether hearing people can sufficiently comprehend court proceedings in order to carry out their role as jurors effectively was acknowledged in the Discussion Paper:
Any juror may perform below the standard expected, due to such factors as his or her individual attention span, boredom threshold, lack of interest in the matter being tried, the trial’s length and unpredictable external events. Any juror may bring his or her prejudices, such as racism or distrust of police or authority, to the jury room. In addition…although using the same evidence, different jurors will reach different conclusions, despite having the use of the same senses. Nearly all commentators agree that juries have great difficulty understanding and applying judicial instructions.17
1.11 Following further consultation, the NSWLRC decided that empirical evidence was needed to assess two key issues:
1.12 The NSWLRC decided that the notion of deaf juror access to jury deliberations should be considered separately, as it was felt that the essential initial issues were related to accuracy and comprehension. Thus the NSWLRC commissioned a study in order to explore the linguistic and interpreting issues that potential deaf jurors faced in accessing court proceedings. The study was jointly funded by the NSWLRC and the Macquarie University External Collaborative Grant Scheme.
1.13 The overall goal of the study was to consider deaf people’s access to court proceedings in the role of juror rather than as a complainant, defendant or witness, and to present evidence relating to the issues that arise in considering any proposal for the empanelment of deaf jurors in NSW criminal courts. This Research Report outlines the various stages of the research, the findings and recommendations, and concludes with suggestions for further study.
Footnotes
1. NSWLRC, DP 46, 2004, [1.4].
2. NSWLRC, DP 46, 2004, [2.8].
3. Golbas, 1981; Silas, 1993.
4. Ellman, 1992; LSS, 2000.
5. Deaf Blawg, 2006; Enright, 1999.
6. Barber, 2005.
7. The third and final reading of the NZSL Bill was passed on 6 April 2006, and received royal assent on 10 April 2006. The NZSL Act is thus now enshrined in New Zealand law and recognises NZSL as New Zealand’s third official language alongside English and Te Reo Maori.
8. The Dominion Post, 2005.
9. NEON, 2006.
10. Travaglia, 2005.
11. New South Wales (capital: Sydney) is an Australian State. Australia has six States and two self-governing territories with independent criminal jurisdictions.
12. NSWLRC, DP 46, 2004, p v.
13. NSWLRC, DP 46 2004.
14. NSWLRC, DP 46, 2004, [5.23]-[5.24].
15. People v Guzman 76 NY 2d 1 (1990), 5.
16. NSWLRC, DP 46, 2004, [2.7].
17. NSWLRC, DP 46, 2004, [2.20].
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