• Evidence
• Interpreters
• Challenging jurors
• Conclusion

3.1 This chapter explores the various legal issues that may arise if deaf or blind people serve as jurors, for example their ability to evaluate evidence, their use of interpreters, and the impact of the current rules for challenging prospective jurors, and, in this context, considers whether deaf or blind people serving as jurors is consistent with the notion of a fair trial.

EVIDENCE

3.2 The jury’s verdict in a criminal trial must be based on the whole of the evidence.¹ It is therefore crucial to determine if a juror who is unable to see or hear is able to receive in its entirety, and properly evaluate, evidence presented at trial. The perceived inability of blind or deaf jurors to do this was the reason identified in almost all preliminary submissions opposing the notion of blind or deaf jurors.² Indeed, it is a judgment commonly made by people who are both sighted and hearing. It is, therefore, not based on direct personal experience. According to People With Disabilities it is “based in antiquated assumptions about and prejudice towards people with disability, and ignorance of the personal and technological assistance that can overcome participation barriers”.³ Even if this is so, however, the very substantial question remains whether, bearing in mind that a juror’s task is difficult in many cases even for jurors with no impediments to observation and communication, the additional difficulties posed by sight or hearing disabilities create risks for the adequacy of the jury’s deliberations.

3.3 Self Help for Hard of Hearing People (“SHHH”), a voluntary non-profit group,⁴ calls the view that all blind and deaf people are unable to discharge properly the duties of a juror an “assumption”, and one that is “both wrong and discriminatory”.⁵ People With Disabilities (“PWD”) states:

it can not be said that people who are blind or deaf are unable to perform the inherent requirements of the position as juror. Blindness or deafness does not result in an incapacity to analyse information.⁶

3.4 Advocates for inclusion, while not seeking a universal right, do decry what amounts to a blanket ban on jury service for the deaf or blind. Professor D Nolan Kaiser, Professor of Philosophy at Central Michigan University and himself blind, refers to the exclusion of blind people from jury service as a “confused legal practice”.⁷ Professor Ron McCallum, Dean of Law at the University of Sydney, states in his preliminary submission:

I am not suggesting that we blind and deaf citizens should always be entitled to sit upon juries irrespective of our disabilities. For example, circumstances may arise in the administration of criminal justice where, having regard to the visual nature of the evidence to be proffered, it would be inappropriate for a blind or visually impaired person to be empanelled for jury service for that trial.⁸

3.6 The nature of the evidence to be adduced at trial is thus a critical question in deciding the suitability of certain persons to serve as jurors. Most evidence is in the form of oral testimony, which would not be an obstacle to a blind juror, except to the extent that he or she is unable to view demeanour, discussed below at paragraphs 3.11-3.22. A deaf juror may be assisted by means of an interpreter,¹⁰ but is, of course, unable to listen to the evidence or, for that matter, to the addresses of counsel, the directions of the trial judge or the deliberations of the other jurors.

3.7 Evidence of a visual nature poses an obvious challenge for the blind, but this should not be regarded as insurmountable in many cases. Documentary evidence can be read aloud, or converted to Braille. It should also be borne in mind that even sighted jurors will not necessarily read entire documents,¹¹ and trials where examination of documents is important are rare. On the other hand, a blind juror would be very limited in assessing the cogency of identification evidence. An American judge surveyed a small sample of blind jurors, all of whom “claimed emphatically that they could understand visual presentations providing the presenter coupled the visual material with detailed testimony”.¹² By this was meant a detailed description of a photograph, diagram, chart or sketch given by the witness, with possible further clarification by their fellow jurors. One commentator suggests that such reliance on other jurors to clarify the visual evidence is to their mutual benefit, as it may force them to focus more clearly on the evidence.¹³ This seems to be acknowledged in the practice of some American courts.¹⁴ By contrast, in Commonwealth v Susi¹⁵ the Supreme Court of Massachusetts found that in a case where identification was the predominant issue, the trial judge had abused her discretion in denying the defendant’s challenge for cause of a blind juror. The Court held that “a mere description of the physical evidence would not have conveyed adequately the subtleties which would be apparent on a visual comparison”.¹⁶ A similar conclusion was reached in Jones v New York City Transit Authority, although the Court did add that the mere fact of a juror’s blindness did not make him or her “any less able to determine the credibility of a witness’ testimony through the use of his [or her] other facilities”.¹⁷

3.8 In People v Caldwell¹⁸ the Court ruled that a vision-impaired juror was able to participate because the case primarily involved credibility determinations based on conflicting accounts from witnesses. The fact that the defendant introduced some photographs at trial did not render the juror ineligible because they involved a collateral issue and so it was not absolutely necessary she see them for herself. Although the case was concerned with whether disqualifying the juror would breach the Americans with Disabilities Act¹⁹ and other US legislation, the conclusions are relevant:

It is difficult to imagine a trial in which absolutely no documents, diagrams, police reports, photographs or physical evidence are introduced. If this court were to hold that Ms B was disqualified simply because a few documents and a few photographs are presented, it would, in effect, be concluding that there were almost no cases on which visually-impaired or blind jurors could sit. … Rather, the question is whether the court could accommodate the juror by verbally describing the evidence or by any other means, and whether the evidence is so crucial that the juror’s inability to see it denied the defendant a fair trial.²⁰

3.10 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. A person who is deaf, for example, might use visual clues to determine a speaker’s tone and inflection.²⁸ It is also very likely that he or she will have developed increased sensitivity in other faculties as a means of compensating for the loss of sight or hearing. SHHH told us that “a blind jury person may not be able to see the demeanour of witnesses, but may compensate for this by hearing subtle nuances of voice and having a better recollection and analysis of what was said”.²⁹ Blind people may well have greater listening skills and the ability to recall information than the sighted,³⁰ and can achieve a high level of auditory and tactile perception.³¹ Of course, this will not always be the case.

Demeanour

3.11 Perhaps the most significant argument often advanced against people who are blind or deaf serving as jurors is that they will be unable to witness the demeanour of a person giving evidence. Demeanour denotes the outward manifestations of a witness, including appearance, conduct and tone and inflection in speech, which may assist the trier of fact generally in interpreting the witness’ oral evidence and also in determining the credibility of the evidence given by that witness.³²

3.12 The importance accorded demeanour in common law is attested to by the reluctance of an appellate court to overturn the decision of a trial judge where this decision has been based on the judge’s opinion of a witness’s demeanour.³³ The trier of fact is regarded as enjoying an advantage in seeing and hearing the witness firsthand, rather than having to rely on printed evidence.³⁴ That advantage may be limited, according to Lord Normand, if the witness is a foreigner and not one “whose native language and modes of thought are English”.³⁵ Cultural interpretations of even non-verbal signals may vary. Apparently, among many Aboriginal people:

silence is a common and positively valued part of conversation which can signal thought, discomfort, lack of understanding, lack of cultural authority to speak on the topic … or disagreement, when unwilling to say so. However, in court silence can be misinterpreted as agreement, … insolence, or guilt.³⁶

3.14 Secondly, demeanour also becomes relevant to the credibility of a witness where a conflict between what is said and the way in which it is said raises the question of whether or not the witness is telling the truth. The issue is whether or not the way in which something is said unconsciously gives the lie away and, if so, whether the recipient of the communication can tell. The facts surrounding the Chamberlain case, which most Australians will remember, provide an example. Following the disappearance of their daughter, Azaria, and the two resulting coronial inquiries, Lindy and Michael Chamberlain were charged with and convicted of her murder and of being an accessory, respectively. Two appeals failed. The convictions were eventually quashed following a judicial inquiry. A major problem with the prosecution’s case was the expert evidence on which it relied and which proved to be wrong. Australians who lived through the entire saga will recall the damaging and potentially prejudicial pre-trial publicity the case attracted, due in part to widespread bizarre and unfounded rumours concerning certain religious practices attributed to the Chamberlains, but also to the widely reported perception concerning the demeanour of the couple, especially Lindy, that they failed to demonstrate sufficient grief. Even the Royal Commissioner, Justice Morling, picked up on this in his report, by apparently feeling the need to comment in passing on this subject, although it was not part of the Crown’s case. He says, for example,

It is true that Mrs Chamberlain might not have displayed as much grief as others may have shown in the same situation, but there is much evidence that she was visibly distressed after Azaria’s disappearance.³⁷ Further, it was not the fact that [Mr Chamberlain] did not exhibit grief.³⁸

3.15 The danger of relying on demeanour in assessing credibility is recognised in modern law. While there can be no doubt that demeanour is of value in confirming inconsistencies in testimony that become apparent in the context of proceedings as a whole, its evidential value is otherwise limited. The English jurist, Sir James Stephen, wrote that if an ability to discern whether a person is lying can be acquired at all, then it is only to be acquired by personal observation and practical experience. “Unless [the judge] knows [those appearing before him] in their unrestrained and familiar moments, he will have great difficulty in finding any good reason for believing one man rather than another”.³⁹ Almost eighty years ago Lord Atkin expressed the opinion that “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour”, and, elsewhere, “the lynx eyed Judge who can discern the truth teller from the liar by looking at him is more often found in fiction or in appellate judgments than on the Bench”.⁴⁰

3.16 In Onassis v Vergottis Lord Denning MR stated:

Now the Judge [at first instance], it is true, has a great advantage over this Court. He sees and hears the witnesses, and we do not. But demeanour is not always a touchstone of truth. A man who appears to be convincing may yet be mistaken. He may, without being fraudulent, have reconstructed the facts in his mind so as to support his own case. Conversely, a man who appears shifty and spiteful may yet be truthful. The heat engendered by the case may have made him angry, but not a liar. It is for this reason that a judge of fact should always test the evidence by reference to the documents and the probabilities of the case.⁴¹

3.17 In Devries v Australian National Railways Commission Justices Deane and Dawson stated in a joint judgment:

Judges are increasingly aware of their own limitations and of the fact that, in a courtroom, the habitual liar may be confident and plausible, and the conscientious truthful witness may be hesitant and uncertain. In that context, it is relevant to note that the cases in which findings of fact and assessments of credibility are, to a significant extent, based on observation of demeanour have possibly become, if they have not always been, the exception rather than the rule. ⁴³

3.19 Experiments conducted over the past few decades to detect whether ordinary people have the capacity to detect lies or error through observation of non-verbal behaviour have shown:

[w]ith remarkable consistency … that [the capacity] simply does not exist. To the extent that people can detect lying or erroneous beliefs in another, they do so primarily by paying close attention to the content of what the other says, not by observing facial expression, posture, tone of voice, or other nonverbal behaviour. ⁴⁴

3.21 Vocal cues would normally be considered part of a witness’s overall demeanour. Nevertheless, the New York Court of Appeals questioned whether “perception of vocal inflections is a necessary part or a superior method of assessing credibility”.⁴⁷ In considering whether a profoundly deaf man was qualified to serve as a juror, the Court disagreed with the defendant’s contention that such a juror could not adequately evaluate the credibility of oral testimony because he would miss vocal inflections, and appeared to accept the juror’s testimony that he was able to use visual clues to determine the tone and inflection of the speaker. This is not necessarily in conflict with the findings cited in the previous paragraph, as it may be the case that a person who is deaf has learnt to observe with greater acuity than a person who has all their senses. The Court said this with regard to the way jurors generally arrive at a conclusion:

Each juror is expected to bring to the courtroom his or her own method of sorting fact from fiction – the same method the juror relies on in conducting everyday affairs. The factors that each juror will rely on to evaluate the trustworthiness of a statement will be a function of that juror’s experience. This juror’s experience has been to make such determinations without vocal clues. Nothing but speculation suggests that this has been a disadvantage. If anything, his apparent success suggests that for him the ring of truth need not be heard to be recognised.⁴⁸

INTERPRETERS

3.23 A principle of common law holds that a jury must deliberate in private,⁵⁰ and that it is “an incurable irregularity” for a non-member to be present in the jury room.⁵¹ This was the basis for the Court’s decision in Osman to discharge a person summoned for jury service who was profoundly deaf and who would have required the services of an interpreter during deliberations.⁵²

3.24 In Britain, publicity arising out of cases occurring during the past two decades in which deaf people have been denied the opportunity to serve as jurors has led to calls for change.⁵³ In April 2000 the Lord Chancellor indicated that he did not oppose deaf people serving as jurors. The following year Lord Justice Auld, who had been appointed by the Lord Chancellor, the Home Secretary and the Attorney-General to review the working of the Criminal Courts of England and Wales, delivered his report. He stated that while caution about the prospect of a thirteenth person in the jury room was understandable, “accredited interpreters work to agreed professional standards that should preclude any attempt to intrude on or breach the confidence of juries’ deliberations”.⁵⁴ Because the Home Office was due to issue a consultation paper on the subject of third party support to jurors,⁵⁵ he refrained from making a recommendation but expressed in principle support for providing reasonable arrangements and suitable safeguards to enable people with disabilities to serve as jurors.

3.25 Some jurisdictions within the United States have overcome this problem. Some States have enacted legislation permitting the use of interpreters.⁵⁶ In United States v Dempsey⁵⁷ the Court considered objections to the presence of an interpreter during deliberations. Of concern was whether this posed a threat to the secrecy of jury deliberations, and whether the interpreter might unlawfully participate.⁵⁸ The Court formed the view that an interpreter could well be less likely than a juror to reveal confidences of the jury room. Participation in deliberations was also unlikely as an interpreter performing his or her role properly would be occupied with signing. In any case such concerns could be obviated by the trial judge administering an oath requiring the interpreter neither to interfere with, nor reveal, the deliberations.⁵⁹

3.26 The Court in Dempsey was more concerned with the potential “chilling” effect the presence of a thirteenth person might have - in other words, whether the jurors would feel inhibited from speaking frankly. The Court considered that this was unlikely in a “television-age society” that “has become so accustomed to seeing interpreters for the deaf translating to sign political speeches, newscasts, and the like that virtually all of us have come to view such interpreters more as part of the background than as independent participants”.⁶⁰ However, because of important social policy considerations militating “against automatically foreclosing members of an important segment of our society from jury duty” merely because of their need for an interpreter in the jury room, the Court declined to adopt a rule stating that the presence of an interpreter in the jury room would necessitate a new trial.

3.27 In People v Guzman⁶¹ New York State’s highest Court rejected as unfounded concerns about the interpreter’s presence in the jury room. The Court stated that the general rule excluding strangers was sufficiently flexible to allow in a signer where this was necessary to accommodate a hearing-impaired juror. The signer is a “neutral figure”, in contrast with bailiffs or court officials whom the jury may perceive as being aligned with the law enforcement community and whose presence may thus be inhibiting.⁶² Participation in the deliberative process by an interpreter can be avoided by having him or her swear an oath, and by instructing both the interpreter and the jury that participation is improper, any breach reportable to the court. “This, together with ethical constraints and the signer’s hope of future employment in this capacity should provide sufficient assurance that the signer will not make public the proceedings in the jury room.”⁶³ The practical result of Guzman appears to be an increasing use of deaf jurors in New York courts, with sign interpreters being secured through a co-operative relationship between the courts and the New York Society for the Deaf.⁶⁴

3.28 There are other concerns that may be held with regard to the use of sign language interpreters in a jury context. For example, during jury room deliberations, which have no prescribed procedure and where discussion may be lively, a practical difficulty may arise. Should several jurors speak at once, or individual jurors talk amongst themselves, whose contribution is the interpreter to sign? What level of qualification would an interpreter need in order to meet the demands of the trial situation, and how would the competence of the interpreter be assessed? Are there any implications for the trial process in the need to rest and rotate the interpreters? An interpreter may be able to sign for up to an hour or so, depending on the complexity or intensity of the matter, before requiring a break. It is arguable that rotating interpreters is disruptive to the flow of proceedings. It may also have adverse cost implications. On the other hand, for those concerned that an interpreter might somehow participate in deliberations or unduly influence his or her audience, rotation may be seen as a way of countering this by fragmenting each interpreter’s time in the jury room.

Is Auslan English?

3.29 A potential problem related to the use of sign language arises in New South Wales. This is the relationship of Auslan⁶⁵ to English. Auslan, or Australian Sign Language, is the language used by sections of the deaf community in Australia, and has been formally recognised as a community language in national policy statements.⁶⁶ It has no written form. One misconception about sign language is that it is universal. Australian Sign Language evolved in the nineteenth century from British Sign Language (BSL), and while the two are clearly related they are both unlike American Sign Language (ASL), even though all three of these deaf communities reside in countries with English as the spoken language. This brings us to a second common misconception, namely that Auslan is English conveyed through signs, a kind of manual representation of English. Auslan is not English, although it is influenced by it. It is a visual language with its own grammar and lexicon, and is not based on spoken languages. Auslan is the primary, and sometimes only, language of the majority of the early onset profoundly deaf population.⁶⁷ Members of the deaf community commonly lead “bilingual lives”,⁶⁸ in which English is a second language.

3.30 Included in the list of those ineligible for jury duty is “a person who is unable to read or understand English.” The fact that a deaf juror could require the assistance of an Auslan interpreter does not necessarily mean that such a juror is unable to read or understand English. Nevertheless, the requirement for a juror to be able to read and comprehend English may imply that English is the language through which the jurors are expected to receive evidence presented at trial.⁶⁹

3.31 The point was taken by the court in Guzman,⁷⁰ which stated:

It is clear that in order for a deaf person to meet the statutory language requirement for jury service that person must understand and communicate in English using either signed English, or lip reading, or finger spelling or any combination thereof as the mode of communication. There are those in the deaf community who know only American Sign Language and do not know English. These people would not meet the statutory English requirement any more than would any other non-English-speaking person.

3.33 However, even where deaf people are fluent in English, Signed English is not a feasible alternative for use in a courtroom setting. The vocabulary is small, containing only approximately 2500 words.⁷⁴ It is, therefore, extremely limited, and it would be difficult even to find an interpreter as Signed English is used little following the completion of schooling.

3.34 The joint submission from the Deaf Society of NSW and the NSW Association of the Deaf states that, “while it is not always possible for Deaf people to use a ‘basic level’ of spoken English, many Deaf people are employed in positions which require a great deal of public interaction, and most Deaf people can read a newspaper, even though it is written in their second language, English”.⁷⁵ In this and other respects it is arguable that the situation of a deaf juror relying on an Auslan interpreter but bilingual in Auslan and English, can be distinguished from that of other prospective non-English speaking jurors. Auslan is related to English; should the need arise to convey a precise phrase or sentence (such as a term of a contract) into English, this could be achieved by transliterating Auslan signs into English word order. Furthermore, the life experiences of Auslan speakers have been gleaned in an Australian context, aiding comprehension of evidence adduced at trial.

3.35 Nevertheless, it might be argued that an interpreter is just that, an interpreter; the evidence adduced in the courtroom and the discussion that takes place in the jury room are filtered through the interposition of this third person to the deaf juror, thereby necessitating a kind of editing process. This would especially apply to a jury room situation where a number of people might speak at once, the interpreter needing to select which comments to translate into Auslan.

CHALLENGING JURORS

3.36 Part 6 of the Jury Act 1977 (NSW) provides for the making of challenges to persons acting as jurors. There are two principal types of challenge in New South Wales, the peremptory challenge and the challenge for cause.⁷⁶ The peremptory challenge allows each of the accused and the Crown in criminal proceedings to challenge three of the potential jurors without giving any reason.⁷⁷

Challenge for cause

3.37 The Crown⁷⁸ and the accused⁷⁹ may challenge any number of the prospective jurors for cause on one of the few permitted grounds. In Murphy v The Queen the High Court, quoting the trial judge, identified the causes for challenge as being that:

[T]he proposed juror does not possess the necessary qualifications or that he has some personal defects which render him incapable of discharging his duty as a juror or that he is not impartial or that he has served on another jury in respect of the same matter or that he has been convicted for an infamous crime. ⁸⁰

3.39 The fact that a juror has a significant vision or hearing impairment may not be apparent to the parties. It is, however, vital that the parties have this information, as they are in the best position to know whether the impairment may adversely affect their cases. Present procedures, which disclose nothing about a prospective juror, would, therefore, need modification. While this does not appear to be an insuperable problem, the Commission would welcome comments on it. Another procedural difficulty is the delay caused to the commencement of trial, should a juror requiring a sign interpreter be selected. Interpreters available for the duration of the trial and subsequent jury deliberation need to be identified and appointed.

Peremptory challenges

3.40 A peremptory challenge is one in which no reason need be given for objecting to a particular potential juror. Chief Justice Barwick stated:

[t]hat the challenge is peremptory means that the accused need not in any wise justify his challenge. It need represent no more than his personal objection to be tried by the person whom he sees before him. … It is his peculiar right to follow his own impressions and inclinations.⁸⁵

3.42 In the context of people with disabilities serving as jurors, the peremptory challenge may present an insurmountable problem. Were initiatives to be introduced, such as assessment by the Sheriff’s Office or the court of individual prospective jurors to ascertain whether their blindness or deafness in reality prevents their effective functioning, as well as the introduction of interpreters and assistive technology, these can nevertheless be rendered ineffective by the continuing use of peremptory challenges.

3.43 In 1986 this Commission produced a report on juries in criminal trials.⁹¹ At that time each side was permitted twenty peremptory challenges where the offence was murder, and eight in any other case.⁹² Having regard to the inherent problems with this type of challenge, the Commission considered various options for reform, including its abolition. This option was rejected, as it was felt that parties would be forced to challenge for cause, a procedure both more time-consuming and potentially embarrassing for the prospective juror.⁹³ Further, it was argued that, as the rules and procedures pertaining to jury selection are established by the Crown, the abolition of peremptory challenge would deny the accused an input into the composition of the jury trying his or her case.⁹⁴

3.44 The law was amended to allow each side three peremptory challenges,⁹⁵ with a correspondingly reduced risk of discriminatory selection.

United Kingdom

3.45 In 1986 the Fraud Trials Committee published a report (“the Roskill Report”), recommending the abolition of the peremptory challenge in fraud cases.⁹⁶ The Committee’s comments make clear that it would have gone further had it not been constrained by its terms of reference:

The current practice of peremptory challenge further weakens the same principle [of random selection], to a potentially critical extent. Our evidence shows that the public, the press and many legal practitioners now believe that this ancient right is abused cynically and systematically to manipulate cases towards a desired result. The current situation bids fair to bring the whole system of jury trial into public disrepute. We conclude that in respect of fraud trials such manipulation is wholly unacceptable and must be stopped. Whether it is acceptable in robbery, drugs or murder trials is for others to conclude. ⁹⁷

United States

3.46 In contrast with the juror anonymity provisions of this State, most American jurisdictions permit extensive examination of prospective jurors by means of a “voir dire”. Through this procedure counsel may question prospective jurors about their attitudes and other personal details, and then use the results to make peremptory “strikes”, or challenges, against them.⁹⁹ To the extent to which this practice is unregulated, its use carries the risk that it may reflect no more than the prejudices of the challenger.¹⁰⁰

3.47 In Batson v Kentucky¹⁰¹ the United States Supreme Court imposed limits on the prosecution’s right to make peremptory challenges, by prohibiting challenges made on the basis of race. The Court’s finding was based on the Equal Protection Clause contained in the Fourteenth Amendment to the US Constitution, and to that extent is of little relevance in New South Wales. Of interest, however, is the mirroring by Batson (and its so-called “progeny”) of initiatives to reduce discrimination in society, together with comments contained in the majority opinion pertaining to jury selection.

3.48 The appellant was an African American convicted of burglary and receipt of stolen goods. During the trial the prosecutor had used his peremptory challenges to strike all four black persons on the venire, or jury pool, and an all-white jury was sworn. It was held that, while the prosecutor was ordinarily entitled to exercise peremptory challenges for any reason, the Equal Protection Clause forbids challenges to potential jurors solely on account of their race. The Court stated:

While we recognise, of course, that the peremptory challenge occupies an important position in our trial procedures, we do not agree that our decision today will undermine the contribution the challenge generally makes to the administration of justice. The reality of practice, amply reflected in many state- and federal-court opinions, shows that the challenge may be, and unfortunately at times has been, used to discriminate against black jurors. By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice. In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.¹⁰²

[t]he harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. Discrimination within the judicial system is most pernicious because it is “a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others.”

3.51 JEB v Alabama ex rel TB¹⁰⁴ extended the prohibition to gender-based peremptory challenges. Previous decisions had already applied Batson to civil cases,¹⁰⁵ and to criminal defence use of racially discriminatory challenges.¹⁰⁶ It appears unlikely, however, that Batson will be extended to prohibit peremptory challenges on the basis of disability. As the Court stated in United States v Harris¹⁰⁷ “unlike race or gender, disability may legitimately affect a person’s ability to serve as a juror”.¹⁰⁸ Rather, the current approach of examining each case on its particular facts to discover whether a prospective juror can do the job, with or without reasonable accommodations, seems likely to continue.¹⁰⁹

3.52 Unlike race or gender, blindness or deafness can impair the ability of the person to perform effectively as a juror. However, it is arguable that a blanket ban on allowing persons who are blind or deaf to serve as jurors is no more rational than a ban based on race or gender. Testing the extent of a sight or hearing disability is always possible.

3.53 In Galloway v Superior Court of the District of Columbia,¹¹⁰ a blind man responded to a notice to appear for jury duty but was then barred from serving due to his blindness. He filed suit alleging the violation of various legislative provisions. The Court, finding in his favour, noted that “whether a blind juror can serve competently can be addressed on a case-by-case basis”.¹¹¹ In Guzman, the New York Court of Appeals stated that, in regard to those such as deaf prospective jurors, “the question in each case, assuming that the prospective juror is otherwise qualified, must be whether the individual is capable of doing what jurors are supposed to do” (emphasis added).¹¹² Both cases assume that reasonable adjustments (“accommodations”) such as sign interpreters, will be offered as required.¹¹³

The limits of reform

3.54 If the conclusion from analysis of the current exclusionary policy is that there are compelling reasons for departing from the status quo, there is nevertheless a real danger that reform risks being cosmetic only. A blind or deaf person, called to be a juror, may be prevented from being empanelled due to peremptory challenge by counsel on the basis of the sorts of preconceptions discussed in this chapter. In the United States a peremptory challenge based on a juror’s deafness was disallowed because, the Court stated, “the effort to bar the hearing impaired person from jury service must, at the very least, have a rational basis” and, in the light of Guzman, the proposed challenge based solely on disability and not on the juror’s ability to communicate was not rational and violated the juror’s equal protection rights.¹¹⁴ However, even in the United States this test is not applicable in all jurisdictions, making it easier to sustain a peremptory challenge in these circumstances.¹¹⁵ In New South Wales it is not a requirement that a peremptory challenge be based on any articulated reason.¹¹⁶

3.55 For meaningful change to take place, considerable effort would be required to educate and instil confidence in lawyers and the general public as to the competence of deaf or blind people to serve as jurors. Unless such a perception becomes widespread and not merely patchy, in practice blind or deaf people may well continue to be excluded from juries.

CONCLUSION

3.56 Many of the objections to blind or deaf people serving on juries appear to be based on prejudice, stereotyping, or the inconvenience of devising means to accommodate such jurors. The systematic exclusion from jury service of a sector of society, especially where its members have expressed a willingness to serve, has the potential to undermine public confidence in the criminal justice system by calling into question its fairness. Belief in the fairness of the justice system could be damaged by the perception that legal rules fail to keep pace with our better understanding of the rights of people with disabilities, and their ability to contribute to, and participate in, society. In this regard, Justice Deane has stated:

a change in community perceptions or standards may lead, on reconsideration, to the modification or abandonment of rules or practices which were, in other times, seen as necessary to ensure that the trial of an accused was a fair one.¹¹⁷

1. In addition the Jury Act 1977 (NSW) s 72A requires each juror to take an oath or affirm that he or she will give “a true verdict according to the evidence”. Where a court of criminal appeal is asked to set aside a verdict as unsafe “the question must in the end be … whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: Whitehorn v The Queen (1983) 152 CLR 657 at 686; Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 532; R v Knight (1992) 175 CLR 495 at 511; Davies v The Queen (1937) 57 CLR 170 at 180-181.

2. Far West Law Society, Submission at 1; Legal Aid Commission of NSW, Submission at 1; New South Wales Police Service, Submission at 1-2; Scott, Submission at 1; Wood, Submission at 1.

3. People With Disabilities, Submission at 1.

4. University of Sydney, Research Centre for Adaptation in Health and Illness, “SHHH” «www.usyd.edu.au/rcahi/Links/SHHH.html» (as at 8 July 2003).

5. Self Help for Hard of Hearing People (“SHHH”), Submission at 1.

6. People With Disabilities, Submission at 4.

7. D N Kaiser, “Juries, Blindness, and the Juror Function” (1984) 60 Chicago Kent Law Review 191 at 191.

8. McCallum, Submission at 2.

9. Associate Judge Nicholas T Pomaro quoted in D Ranii, “Blind Judge Backs Use of Deaf, Blind Jurors” National Law Journal (NY) (21 March 1983) at 11.

10. See para 4.16, 5.23, 5.24.

11. M J Crehan, “Seating the Blind Juror” (1997) 81 Judicature 104 at 108.

12. M J Crehan, “Seating the Blind Juror” (1997) 81 Judicature 104 at 107.

13. M J Crehan, “Seating the Blind Juror” (1997) 81 Judicature 104 at 108.

14. See, for example, S M Wise and G Mota, “Justice Can Be Blind and Still See” National Law Journal (14 May 1984) at 47 (blind juror in personal injury case in a Minneapolis district court, who “relied on medical and other testimony, as well as his fellow jurors’ descriptions, to form an opinion about the plaintiff’s alleged disfigurement”); N Zeldis, “Blind Juror Sits on Case” National Law Journal (26 October 1987) at 43 (blind juror in “slip-and-fall” case, NY Supreme Court. The presiding judge said “the only irregularity in the proceedings came when he instructed the jury to view some 13 exhibits during deliberations, and, in deference to [that juror], asked the other jurors to describe the contents to her”).

15. Commonwealth v Susi 394 Mass 784 (1985).

16. Commonwealth v Susi 394 Mass 784 (1985) at 788; Compare M J Crehan, “Seating the Blind Juror” (1997) 81 Judicature 104 at 108, 110.

17. Jones v New York City Transit Authority 126 Misc 2d 585 (1984) at 589.

18. People v Caldwell 603 NYS 2d 713 (1993).

19. 42 USC § 12101 and following.

20. People v Caldwell 603 NYS 2d 713 (1993) at 716.

21. People v Guzman 76 NY 2d 1 (1990) at 6 (NY Ct of Appeals); see also para 2.17-2.21.

22. M J Crehan, “Seating the Blind Juror” (1997) 81 Judicature 104 at 110.

23. Ward v James [1966] 1 QB 273 at 301.

24. People v Guzman 76 NY 2d 1 (1990) at 6 (NY Ct of Appeals).

25. New Zealand, Law Commission, Juries in Criminal Trials Part 1: A Discussion Paper (PP No 32, 1998) at para 62.

26. Various commentators, summarised in P Darbyshire, A Maughan and A Stewart, “What Can the English Legal System Learn from Jury Research Published up to 2001?”at 25-26 «www.kingston.ac.uk/~ku00596/elsres01.pdf» (as at 19 June 2003); see also D N Kaiser, “Juries, Blindness, and the Juror Function” (1984) 60 Chicago Kent Law Review 191 at 203-204.

27. In Australia this will be much more extensive than is the case in the US, where judges are, for the most part, prohibited from discussing the facts.

28. See People v Guzman 76 NY 2d 1 (1990) at 6 (NY Ct of Appeals).

29. SHHH, Submission at 2.

30. M J Crehan, “Seating the Blind Juror” (1997) 81 Judicature 104 at 106.

31. M J Crehan, “Seating the Blind Juror” (1997) 81 Judicature 104 at 110.

32. Butterworths Encyclopaedic Australian Legal Dictionary (Butterworths, Sydney, 2002) (online).

33. Yuill v Yuill [1945] 1 All ER 183 at 188 (Lord Greene MR); Jones v Jones [1961] NSWR 278 at 280; Mashiati v Australian Poultry Ltd (1995) 11 NSWCCR 345 at 352 (Clarke JA). The importance of demeanour is also given as one of the reasons for the rule against the admission of hearsay evidence: see, for example, Teper v The Queen [1952] AC 480 at 486.

34. Watt v Thomas [1947] AC 484 at 487-8 (Lord Thankerton); Devries v Australian National Railways Commission (1993) 177 CLR 472 at 480.

35. The “British Confidence” [1951] 1 Lloyd’s Rep 447 at 460; see also Mashiati v Australian Poultry Ltd (1995) 11 NSWCCR 345 at 353.

36. K Mack, “Challenging Assumptions About Credibility” (2001) 39(10) Law Society Journal 60 at 62.

37. Australia, Royal Commission of Inquiry into Chamberlain Convictions, Report of the Commissioner the Hon Mr Justice T R Morling (Government Printer, Darwin, 1987) at 296.

38. Australia, Royal Commission of Inquiry into Chamberlain Convictions at 300.

39. J F Stephen, The Indian Evidence Act (Macmillan, London, 1872) at 42-43.

40. The quotations are from respectively Société D’Avances Commerciales v Merchants’ Marine Insurance Co (1924) 20 Ll L Rep 140 at 152 and Lek v Matthews (1926) 25 Ll L Rep 525 at 543. See also Kirby P in Britt v Nominal Defendant (NSW, Court of Appeal, No 147/84, 3 July 1987, unreported) at 1. The following are examples of the inappropriate use of demeanour. In Quercia v United States 289 US 466 (1933) at 468, the trial judge had instructed the jury as follows:

And now I am going to tell you what I think of the defendant’s testimony. You may have noticed, Mr Foreman and gentlemen, that he wiped his hands during his testimony. It is rather a curious thing, but that is almost always an indication of lying. Why it should be so we don’t know, but that is the fact. I think that every single word that man said, except when he agreed with the Government’s testimony, was a lie.

“I always used to look at the witnesses’ toes when I was cross-examining them,” said a friend of mine who had practised at the bar in Ceylon. “As soon as they began to lie they always fidgeted about with them.” I knew a Judge who formed the opinion that a letter had been forged because the expression “that woman” which is contained appeared to him to be one which a woman and not a man would use, and the question was whether the letter in question had been forged by a woman. In the Life of Lord Keeper Guildford it is said that he always acted on the principle that a man was to be believed in what he said when he was in a passion. (J F Stephen, The Indian Evidence Act (Macmillan, London, 1872) at 42-43).

42. Onassis v Vergottis [1968] 1 Lloyd’s Rep 294 at 302. Similar opinions are found in Yuill v Yuill [1945] 1 All ER 183 at 189 (Lord Greene MR) and in US cases such as Carbo v US 314 F 2d 718 (1963) at 749; Miller v Virginia Employment Commission 31 Va Cir 151 (1993) at 152; John J Williams v Auto Brokers 6 Va App 570 (1988) at 574.

43. Devries v Australian National Railways Commission (1993) 177 CLR 472 at 480. See also Kirby J in Rosenberg v Percival (2001) 205 CLR 434 at 488.

44. O G Wellborn III, “Demeanor” (1991) 76 Cornell Law Review 1075 at 1104-110.

45. J A Blumenthal, “A Wipe of the Hands, a Lick of the Lips: the Validity of Demeanor Evidence in Assessing Witness Credibility” (1993) 72 Nebraska Law Review 1157 at 1195. In cases where jurors must assess the accuracy, rather than the truthfulness, of the witness’s testimony, researchers have found that the witness’s confidence is the major influence on a jury’s belief. Of course, this bears little relation to whether the witness’s perception and memory are correct: Wellborn at 1089-1091.

46. Wellborn at 1088.

47. People v Guzman 76 NY 2d 1 (1990) at 6 (NY Ct of Appeals).

48. People v Guzman 76 NY 2d 1 (1990) at 6 (NY Ct of Appeals).

49. See para 3.13.

50. Goby v Wetherill [1915] 2 KB 674 at 675; R v McNeil [1967] Crim L R 540.

51. In re Osman [1995] 1 WLR 1327.

52. In re Osman [1995] 1 WLR 1327 at 1328.

53. Eg “Prime Minister Tony Blair has indicated that the law could be changed to make it easier for deaf people to perform jury service. The announcement follows the outcry over the failure of an appeal by a profoundly deaf man against a court’s decision banning him from sitting as a juror. Jeff McWhinney, chief executive of the British Deaf Association, was told … that the current law did not allow a 13th person – in this case a sign language interpreter – to be present in a jury room during deliberations”: BBC News Online (10 November 1999), “Deaf Juror Rules ‘to be Reviewed’” «news.bbc.co.uk/1/hi/uk/514551.stm» (as at 29 July 2003). See also D Silas, “Deaf Jurors” (1993) 143 New Law Journal 896; J Robins, “Falling On Deaf Ears” (2000) 97 Law Society’s Gazette 28; S Enright, “The Deaf Juror and the Thirteenth Man” (1999) 149 New Law Journal 1720.

54. R E Auld, Review of the Criminal Courts of England and Wales: Report (The Chancellor’s Department, London, 2001) at 153.

55. This paper is not available to the Commission at the time of writing.

56. Examples include the following provisions from Massachusetts (permitting a deaf juror to use a translator) and Illinois (rendering it unlawful for a person who is not a jury member to hear or observe jury deliberations):

… In the presence of the jury, the court shall instruct the translator to make true, literal and complete translations of all testimony and other relevant colloquy to the deaf juror to the best of his ability. The court may permit a translator to be present and assist a deaf juror during the deliberations of the jury. In the presence of the jury, the court shall instruct the translator to refrain from participating in any manner in the deliberations of the jury and to refrain from having any communications, oral or visual, with any member of the jury regarding the deliberations of the jury except for the literal translations of jurors’ remarks made during deliberations. The verdict of the jury shall be valid notwithstanding the presence of the translator during deliberations. (General Laws of Massachusetts Chapter 234A § 69.)

However, if any juror is deaf or hard of hearing, the juror may be accompanied by and may communicate with a court appointed interpreter throughout any period during which the jury is sequestered or engaged in its deliberations. If the jury foreman reasonably believes that the interpreter is doing more than interpreting, nothing in this Act shall prevent him or her from petitioning the court and requesting that the interpreter be replaced with another interpreter. (705 Illinois Compiled Statutes § 315/1(a) (Jury Secrecy Act).)

58. The importance of the secrecy of the jury’s deliberations has recently been reinforced in R v O’Connor [2004] UKHL 2 (22 January 2004).

59. US v Dempsey 830 F 2d 1084 (1987) at 1090.

60. US v Dempsey 830 F 2d 1084 (1987) at 1091. The Commission is not suggesting that this is necessarily the same in Australia.

61. People v Guzman 76 NY 2d 1 (1990) (NY Ct of Appeals).

62. People v Guzman 76 NY 2d 1 (1990) at 7 (NY Ct of Appeals).

63. People v Guzman 76 NY 2d 1 (1990) at 7 (NY Ct of Appeals).

64. S S Ostrau, “Administrative Judge Hails Efforts of Courts” New York Law Journal (11 February 1992) at 2; F Ellman, “Translator Aids Deaf Juror in Negligence Trial” New York Law Journal (27 August 1992) at 2; O Kitzes, (Letter to the Editor) New York Law Journal (11 February 1992) at 2.

65. The discussion of Auslan is compiled from the following sources: T Johnston (ed), Signs of Australia: a New Dictionary of Auslan (North Rocks Press, Sydney, 1996) at 8, 557-566; Victoria Deaf Society, “What is Auslan” «www.vicdeaf.com.au/about us/auslan/about_auslan.htm» (as at 14 October 2003); Australian Communication Exchange, Deafness Resources Australia, “What is the Difference Between Auslan and Signed English?” «www.aceinfo.net.au/Resources/Downloads/ faq/dra.rtf» (as at 14 October 2003); The Western Australian Deaf Society Inc, “Auslan – Australian Sign Language” «www.wadeaf.org.au/auslan.shtml» (as at 14 October 2003)

66. J Lo Bianco, National Policy on Languages (AGPS, Canberra, 1987) at 14, 76.

67. Johnston at 557.

68. Deaf Society of NSW and NSW Association of the Deaf, Submission at 1, 2.

69. In the United States there have even been successful challenges against prospective jurors who were bilingual in English and Spanish, on the basis that some of the testimony was to be in Spanish, and it was feared that the jurors would follow the original Spanish and not the interpreter’s official English version: Hernandez v New York 500 US 352 (1991).

70. People v Guzman 125 Misc 2d 457 (1984) at 459 (NY Sup Ct). The Court of Appeals noted that the appeal did not require it to determine whether a juror dependent on a “nonliteral sign language”, such as American Sign Language, would be qualified under the statutory requirement that a juror be English-speaking: 76 NY 2d 1 (1990) at 3 n2. See also People v Green 561 NYS 2d 130 (1990); Arizona v Marcham 160 Ariz 52 (1988); People v Rodriguez 145 Misc 2d 105 (1989).

71. Johnston at 560.

72. Spelling words out, letter by letter, by means of twenty-six distinct configurations of handshapes: Johnston at 558.

73. Signed English is a signed form of English, thus English in a different format. It uses English grammar and syntax, but borrows many signs from Auslan: Deaf Society of NSW, “FAQ” «www.deafsocietynsw.org.au/resources/faqsign.htm» (as at 21 October 2003).

74. Advice obtained from Robert Adam, Co-ordinator of Community Relations and Development for the Deaf Society of NSW.

75. Deaf Society of NSW and NSW Association of the Deaf, Submission at 2.

76. Challenge to the array, that is, to the entire jury panel, is also available on the basis of some default of duty on the part of the Sheriff eg disregarding the provisions of a statute or of the law: R v Grant [1972] VR 423 at 424. See also Jury Act 1977 (NSW) s 41.

77. Jury Act 1977 (NSW) s 42(1); If the Crown and all the accused agree, then any number of peremptory challenges may be made: s 42(2). In civil proceedings each party may issue challenges to half the number of potential jurors as are required to constitute the jury: s 42A.

78. Jury Act 1977 (NSW) s 43.

79. Jury Act 1977 (NSW) s 44.

80. Murphy v The Queen (1989) 167 CLR 94 at 102.

81. See para 2.2.

82. L A McCrimmon, “Challenging A Potential Juror For Cause: Resuscitation Or Requiem?” (2000) 23 University of New South Wales Law Journal 127 at 135; Jury Act 1977 (NSW) s 46.

83. Jury Act 1977 (NSW) s 29, 37, 67A, 68.

84. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration, Melbourne, 1994) at 45; McCrimmon at 128.

85. Johns v The Queen (1979) 141 CLR 409 at 418.

86. Findlay at 48.

87. New South Wales Law Reform Commission, The Jury in a Criminal Trial (Report 48, 1986) at para 4.60.

88. Johns v The Queen (1979) 141 CLR 409 at 418.

89. M A Lynch, “The Application of Equal Protection to Prospective Jurors With Disabilities: Will Batson Cover Disability-Based Strikes?” (1993) 57 Albany Law Review 289 at 305.

90. Findlay at 49-52. See also England and Wales, Fraud Trials Committee, Report (“Roskill Report”) (HMSO, London, 1986) at para 7.22-7.24.

91. See note 86 above.

92. NSWLRC Report 48 at para 4.58.

93. Compare Findlay at 55: “Given the limited grounds on which a challenge for cause can be mounted, and the paucity of information that counsel possess about prospective jurors, there is little to suggest such an extravagant consumption of time or stress. Further, it could be argued that it is highly desirable, where counsel has strong grounds for suspecting bias on the part of a prospective juror (such as would warrant a challenge for cause), that this bias be explicitly identified in the courtroom. In this way the empanelment procedure would be clearly seen to be operating to secure an “impartial” jury…”

94. New South Wales Law Reform Commission, The Jury in a Criminal Trial (Discussion Paper 12, 1985) at para 4.16.

95. Jury (Amendment) Act 1987 (NSW) Sch 1 item 5; Statute Law (Miscellaneous Provisions) (No 3) Act 1988 (NSW) Sch 12 item 3. Findlay is critical of this so-called “compromise”, claiming that “the only practical alternative to the vagaries of the current peremptory challenge mechanism is to dismantle it altogether”: Findlay at 53-54.

96. Roskill Report at para 7.38.

97. Roskill Report at para 7.37.

98. Criminal Justice Act 1988 (UK) s 118(1).

99. M Findlay at 53.

100. A Weis, “Peremptory Challenges: the Last Barrier to Jury Service for People With Disabilities” (1997) 33 Willamette Law Review 1 at 5, refers to peremptory challenges as “the final and ultimate bastion of prejudice, segregation, and exclusion preventing jury service by “qualified” people with physical and mental impairments”.

101. Batson v Kentucky 476 US 79 (1986).

102. Batson v Kentucky 476 US 79 (1986) at 98-99.

103. Batson v Kentucky 476 US 79 (1986) at 87-88.

104. JEB v Alabama ex rel TB 511 US 127 (1994).

105. Edmonson v Leesville Concrete Co Inc 500 US 614 (1991).

106. Georgia v McCollum 505 US 42 (1992).

107. US v Harris 197 F 3d 870 (1999) at 875.

108. See also NY v Falkenstein 288 AD 2d 922 (2001); Donelson v Fritz 70 P 3d 539 (2002); Compare People v Green 561 NYS 2d 130 (1990).

109. Lynch at 302.

110. Galloway v Superior Court of the District of Columbia 816 F Supp 12 (1993).

111. Galloway v Superior Court of the District of Columbia 816 F Supp 12 (1993) at 18 n 12.

112. People v Guzman 76 NY 2d 1 (1990) at 5 (NY Ct of Appeals).

113. See further discussion at para 4.15-4.18.

114. People v Green 561 NYS 2d 130 (1990) at 132-133.

115. The US Supreme Court has stated “Parties may also exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to “rational basis” review”: JEB v Alabama ex rel TB 511 US 127 (1994) at 143; see also D J Meyer, “A New Peremptory Inclusion to Increase Representativeness and Impartiality in Jury Selection” (1994) 45 Case Western Reserve Law Review 251 at n 152.

116. Katsuno v The Queen (1999) 199 CLR 40 at 50, 57-58.

117. Dietrich v The Queen (1992) 177 CLR 292 at 328.