5.1 This chapter examines the law governing jury service by people with disabilities in selected overseas jurisdictions with emphasis on legislative reforms.
CANADA
5.2 Criminal jury trials are a shared sphere of responsibility between the Federal and Provincial governments. Each Province and Territory has legislation (Jury Act) that sets out the qualifications for inclusion in jury panels and how jury panels will be constituted. Federally, the Criminal Code establishes rules to ensure that selection of jury members is fair.1
Provincial and Territorial law
5.3 In most Provinces and Territories, physical infirmity is a ground for disqualification, or exemption, or challenge for cause. For example, the legislation in Manitoba,2 Northwest Territories3 , Nunavut,4 Ontario5 and Yukon6 provides that a person who possesses a physical or mental infirmity incompatible with the discharge of jury duties is disqualified from serving as a juror. Courts have construed this statutory language as an absolute disqualification.7
5.4 In the 1990’s three provinces – Alberta, British Columbia and New Brunswick – amended their laws to allow people with physical disabilities to render jury service under certain circumstances. The amendments also require the provision of assistance to enable such individuals to render adequate jury service. More specifically, these Provinces’ statutory provisions disqualifying or exempting a person with physical infirmity do not apply to a person who wishes to serve as a juror and who:
- if aided would be able to see or hear adequately and attend court in adequate comfort, and
- will receive the assistance of a person or device that the presiding judge considers adequate to enable the person to discharge the duties of a juror.8
5.5 The legislation in British Columbia and New Brunswick provides further that a person giving assistance may attend in all the proceedings including the jury deliberations but must not comment on the proceedings and can take part in the proceedings only by assisting the juror as the court directs.9 Such provision overcomes the legal impediment to the presence of a non-juror (for example, a sign language interpreter) in the jury deliberation room.
Federal law
5.6 The reforms in some of the Provinces have been reflected at the Federal level. The Criminal Code was amended in 1997 giving courts the authority to permit a juror with a physical disability to have technical, personal, interpretative or other support services.10 Moreover, it provides that a person with a physical disability may be challenged only if he or she is physically unable to perform properly the duties of a juror even with the aid of technical, personal, interpretative or other support services.11 The amendments were made on recommendation by the Federal Task Force on Disability Issues12 and the Federal Justice Department,13 which was of the view that people with disabilities have rights to participate in the criminal justice system and that their automatic disqualification from sitting as jurors diminishes those rights.
ENGLAND AND WALES
5.7 Section 9B of the Juries Act 1974 (Eng) provides that where it appears to the appropriate officer that on account of physical disability there is doubt as to the capacity of a person to act effectively as a juror, the person may be brought before the judge who must determine whether or not the person should act as a juror.14 This section, introduced in 1994,15 established a presumption that people with disabilities can serve as jurors.16 “The judge must affirm the summons unless he or she is of the opinion that the person will not, on account of his or her disability, be capable of acting effectively as a juror, in which case he must discharge the summons.”17
5.8 However, courts have used this section to discharge jury summonses received by deaf individuals.18 In one of these cases, the court identified duties in the court and in retirement as the two aspects that present obstacles to jury service by deaf people. A deaf person must rely on an interpreter during the hearing and in the process may lose some of the meanings of the oral testimony. Consequently, he or she will be ineffective in assessing the credibility of witnesses. The more serious problem – which the court described as “insoluble” unless overturned by legislation – is that the presence of an interpreter in the deliberation room would violate the established rule prohibiting a person who is not a juror from retiring with the jury.19
5.9 Following the widely publicised case involving the exclusion from jury service of the chief executive officer of the British Deaf Association,20 Prime Minister Tony Blair indicated in Parliament that the law could be changed to make it easier for deaf people to perform jury service, stating: “Jury service is a great public service and we should do all we can to encourage people to participate in it.”21 The Home Office is preparing a consultation paper on this matter.22
NEW ZEALAND
5.10 Section 8(j) of the Juries Act 1981 (NZ) excluded from jury service persons “incapable of serving because of blindness, deafness, or any other permanent physical disability”. This provision was repealed by the Juries Amendment Act 2000 (NZ). The intention was to encourage people from all walks of life to take part in jury duty.23 However, while persons with physical disabilities are no longer automatically disqualified, the Juries Act contains a number of provisions under which such persons may be excluded or exempted from jury service at various stages of the proceedings. For example, before the jury is sworn, the judge, on his or her own motion, or on application by the registrar, may discharge the summons of a person if the judge is satisfied that, because of physical disability, the person is not capable of acting effectively as a juror.24 The New Zealand Law Commission, in its report on juries in criminal trials, expressed this view:
The ability of physically disabled people to serve on juries has been adequately addressed by the Juries Amendment Act 2000. No further amendment is required.
It agreed with the Act’s focus on ability to serve rather than on categories of disability.25
UNITED STATES
Qualification/Disqualification
5.11 Juror qualification requirements are set by statute or court rules both at State and Federal levels. Under Federal law, a person is not qualified to serve on a jury if he or she is incapable by reason of mental or physical infirmity to render satisfactory jury service.26
5.12 The statutes in some States used to contain provisions that disqualified outright persons whose senses of hearing or sight are substantially impaired.27 New York’s law required a juror to be in “possession of his natural faculties”,28 which was construed as an automatic disqualification of a blind person.29 Such disqualification provisions have all been repealed.
5.13 Reflecting the Federal law, many States currently have uniform provisions that exclude people who are incompetent “by reason of physical or mental ability to render satisfactory jury service”.30 Courts are divided on the construction of these provisions. Earlier cases have construed them as an absolute disqualification for blind and deaf individuals. In other cases, however, they have been interpreted as giving courts the discretion to assess the suitability for jury service of a person with a disability depending on the particular circumstances of each case.31
5.14 There are an increasing number of States that have amended their laws to prohibit the disqualification of a person from jury service “solely on the basis of loss of hearing or sight in any degree”.32 The legislation of West Virginia contains such prohibition but also provides a test as to when people with disabilities may be disqualified:
A person who is physically disabled and can render competent [jury] service with reasonable accommodation shall not be ineligible to act as juror or be dismissed from a jury panel on the basis of disability alone: Provided, That the circuit judge shall, upon motion by either party or upon his or her own motion, disqualify a disabled juror if the circuit judge finds that the nature of potential evidence in the case including, but not limited to, the type or volume of exhibits or the disabled juror’s ability to evaluate a witness or witnesses, unduly inhibits the disabled juror’s ability to evaluate the potential evidence.33
5.15 It should also be noted that many States require jurors to have the ability to read, speak and/or understand the English language.34 This requirement may be used to disqualify deaf persons who use sign language, such as American Sign Language.35 The American Bar Association recommended the deletion of words that require jurors to hear, write, read or understand English. It proposed a broader phrase allowing jury service by persons able to communicate effectively in English. 36 It is not clear how such an approach would solve the problem of whether or not Auslan is an acceptable language for purposes of the Jury Act 1977 (NSW).37
Challenges for Cause
5.16 Many States have statutory provisions allowing parties to challenge a person from sitting as a juror on grounds of physical disability that satisfies the court that the challenged person is incapable of performing jury duties in the particular action.38 However, a number of States now provide that hearing or visual disability alone is not a ground for challenge.39
Exemptions and Excuses
5.17 A few States provide legal exemption from jury service to persons with physical disabilities.40 An exemption, which is granted automatically to persons belonging to an identified group, differs from an excuse, which may be given on an individual basis by the court. There are States that provide excuses, instead of exemptions, based on physical disability.41
5.18 The American Bar Association recommends the elimination of all automatic exemptions, on the basis that group exemptions reduce the representativeness of the jury panel. It favours excuses based either on continuing hardship or if the person’s ability to receive and evaluate information is so impaired that he or she is unable to perform their duties as jurors. This proposed test is phrased in functional terms instead of relying on diagnostic labels, since it is the effect of the disability rather than its cause that is significant. It would encourage tailored assessments based on competence rather than on broad medical terms and stereotypes.42 As has been seen, the Jury Act 1977 (NSW) defines eligility in terms of competence.
Reasonable Accommodation
5.19 In July 1990, the Americans with Disabilities Act (ADA) became effective as the most comprehensive federal civil rights law for people with disabilities in the United States.43 It protects qualified individuals with disabilities from discrimination on the basis of disability. It requires that individuals with disabilities be given equal opportunity in access to State services, including State court programs and services.44 It obliges government agencies including courts to modify their policies, practices and procedures to avoid discrimination, unless the modification would fundamentally alter the nature of its services, programs or activities.45
5.20 The ADA, which has been invoked by people with disabilities in cases where they have been disqualified from jury service, has influenced judges to give greater access to the jury process by providing reasonable accommodations to individuals with disabilities, while ensuring a fair trial.46
5.21 Some States have included juror accommodation provisions in their statutes or rules. They require the provision of assistance to jurors with disabilities, which may consist of human services (such as interpreters for deaf people or readers for the visually impaired) and technology (for example assistive listening device, videotext display, open captioning equipment and real-time computer assisted transcription).47
5.22 The ABA’s Disability (Jury) Accommodation Guide for State Courts contains a comprehensive list of suggested accommodations that go beyond what is currently in State legislation, for example eliminating the physical barriers at the courthouse, such as modifying the jury box and the deliberation room to make them more accessible to people with disabilities.48
Interpreters
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,49 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.50 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.51 Some contain safeguards such as specifying that the interpreter will only act to communicate for and to the juror with the disability,52 or should refrain from personal interjection and uphold the secrecy of the proceeding.53
CONCLUSION
5.25 Law reform in a number of overseas jurisdictions has resulted in the adoption of laws prohibiting the disqualification, exemption or challenge from jury service of blind and deaf people (and others with physical disabilities) based on their disability alone. They give courts discretion to scrutinise the suitability of people with disabilities for jury service. However, rather than focusing solely or mainly on a person’s disability, they emphasise two issues:
- the person’s ability to perform adequate jury service; and
- whether aid or assistance to such a person would enable him or her to render jury service effectively and attend court in adequate comfort.
5.26 The first obliges courts to make determinations on a case-by-case basis and enables them to take into account such factors as: the extent of the person’s disability, the nature of the potential evidence in the case and the person’s ability to receive and assess evidence, including the credibility of witnesses (if any).
5.27 The second element underscores another aspect of the reforms. In addition to removing any legal impediment to jury service by blind and deaf people, courts and other institutions involved in the justice system are being required to modify their policies, practices and procedures to avoid discrimination of people with disabilities, unless the modification would fundamentally alter the nature of their services, programs or activities. In particular, the reforms mandate the provision of support services (also known as reasonable accommodations) required by individuals with disabilities to participate in the jury process.
5.28 Furthermore, there is an emerging trend to adopt laws allowing a person giving assistance to a person with a disability (for example, an interpreter) to attend in all the proceedings including the jury deliberations. The laws are intended to overcome the long-standing prohibition on a non-juror from being present at the jury deliberations.
5.29 Finally, there has been a proposal for the deletion of words in US statutes that require jurors to hear, write, read or understand English. These provisions may be used to disqualify deaf people who use a sign language and require sign language interpreters. The proposed alternative is to require an ability to communicate effectively in English. It is argued that such broader language would allow people who use sign language, such as American Sign Language, to serve as jurors.
Footnotes
1. For a discussion on the interplay between federal and provincial law on juries, see Canada, Department of Justice, Amendments to the Criminal Code and the Canada Evidence Act With Respect to Persons With Disability (Consultation Paper, 1993) at 12.
2. Jury Act (Manitoba), CCSM 1987, c J30, s 3(o).
3. Jury Act (Northwest Territories), RSNWT 1988, c J-2, s 5(b).
4. Jury Act (Nunavut), RSNWT 1988, c J-2, s 5(b).
5. Juries Act (Ontario), RSO 1990, c J.3, s 4(A).
6. Jury Act (Yukon), RSY 1986, c 97, s 5(b).
7. R v Boak [1925] SCR 525 (deaf person).
8. Jury Act (Alberta), RSA 2000, c J-3, s 6(1); Jury Act (British Columbia), RSBC 1996, c 242, s 5; Jury Act (New Brunswick), RSNB 1973, c J-3.1, s 5.1(1).
9. Jury Act (Alberta), RSA 2000, c J-3, s 6(1); Jury Act (New Brunswick), RSNB 1973, c J-3.1, s 5.1(2).
10. Criminal Code 1986 (Can) s 626(2).
11. Criminal Code 1986 (Can) s 638(e).
12. Canada, Federal Task Force on Disability Issues, Equal Citizenship for Canadians with Disabilities (1996), Recommendation 21.
13. Canada, Department of Justice, Amendments to the Criminal Code and the Canada Evidence Act With Respect to Persons With Disability (Consultation paper, 1993) at 12-13.
14. In addition, a judge has, at common law, a residual discretion to discharge a particular juror who ought not to be serving on the jury. This is part of the judge’s duty to ensure that there is a fair trial. It is based on the duty of a judge to prevent scandal and the perversion of justice. A judge must, for example, prevent a juryman from serving who is completely deaf or blind or otherwise incompetent to give a verdict: Mansell v The Queen (1857) 8 El & Bl 54; 120 ER 20; R v Ford (Royston) [1989] QB 868.
15. Criminal Justice and Public Order Act 1994 (Eng) s 41.
16. See R E Auld, Review of the Criminal Courts of England and Wales: Report (The Chancellor’s Department, London, 2001) at para 42.
17. Juries Act 1974 (Eng) s 9B(2).
18. See “Judge ban deaf juror from case” The Times (21 January 1994); R Verkaik, “Ban on severely deaf jurors is upheld by court” The Independent (10 November 1999) at 5; In re Osman [1995] 1 WLR 1327.
19. In re Osman [1995] 1 WLR 1327.
20. R Verkaik, “Ban on Severely Deaf Jurors is Upheld by Court” The Independent (10 November 1999) at 5.
21. United Kingdom, Hansard Debates House of Commons, 10 November 1999 at column 1123.
22. See para 3.24.
23. New Zealand, Hansard Debates, 23 February 2000 at 749.
24. Juries Act 1981 (NZ) s 16AA. See also the following provisions:
Juries Act 1981 (NZ) s 25(1)(b) (Each party to the proceedings is entitled to challenge for cause a potential juror on the ground that he or she is not capable of acting effectively as a juror in the proceedings because of physical disability).
Juries Act 1981 (NZ) s 15(1)(aa) (If the registrar is satisfied, on written application made to him by or on behalf of any person summoned to attend as a juror on any occasion, that, because of that person’s physical disability attendance on that occasion would cause or result in undue hardship or serious inconvenience to that person, or to any other person, or to the general public, the registrar may excuse that person from attending on that occasion).
Juries Act 1981 (NZ) s 22(1)(b) (The judge may discharge a juror if, at any time after the jury is constituted but before the case is opened or the accused is given in charge, it is brought to the attention of the judge that the juror is not capable of acting effectively as a juror in the proceedings because of physical disability).
25. New Zealand, Law Commission, Juries in Criminal Trials (Report 69, 2001) at para 190-194. It did not express any view on the issues associated with the use of interpreters nor on the demeanour problem discussed in Chapter 3 of this Discussion Paper.
26. 28 USC § 1865(b)(4).
27. See M Golbas, “Due Process: The Deaf and Blind as Jurors” (1981) 17 New England Law Review 119, note 3 citing the legislation then current in Arkansas, Iowa, North Carolina and Tennessee.
28. New York Judiciary Law § 506(3). This section has been amended and now provides that in order to qualify as a juror a person must not have a mental or physical condition, or combination thereof, which causes the person to be incapable of performing in a reasonable manner the duties of a juror.
29. Lewinson v Crews 236 NE 2d 853 (1968).
30. Alabama Code § 12-16-60; Arkansas Code § 16-31-102; Colorado Revised Statutes § 13-71-105; General Statutes of Connecticut § 51-217; Delaware Code § 4509; Hawaii Revised Statutes § 612-4; Maryland Code § 8-207; General Laws of Massachusetts, Chapter 234A § 4; Nebraska Revised Statutes § 25-1601; North Carolina General Statutes § 15A-1212; Vermont Statutes Annotated § 962. See also Idaho Code § 2-209; Indiana Code § 33-4-5.5-11; Louisiana Code of Criminal Procedure Article 401; Michigan Compiled Laws § 600.1307a; Minnesota Rules of Practice for District Courts, Rule 808; Missouri Revised Statutes § 494.425(9); Nevada Revised Statutes § 6.030; New Hampshire Revised Statutes § 500-A:6; New Jersey Statutes § 2B:20-1; New Mexico Statutes § 38-5-1; New York Judiciary Law § 506; North Dakota Century Code § 27-09.1-04; Rhode Island General Laws § 9-9-1.1; South Carolina Code § 14-7-810; West Virginia Code § 52-1-8.
31. For a comprehensive survey of cases involving jurors with disabilities, see American Bar Association, Into the Jury Box: A Disability Accommodation Guide for State Courts (1994).
32. See for example Alaska Statutes § 09.20.010; Arkansas Code § 16-31-102; California Code of Civil Procedure § 203; General Statutes of Connecticut § 51-217; Florida Statutes § 913.03(2); Oregon Revised Statutes § 10.030.
33. West Virginia Code § 52-1-8(e).
34. Alabama Code § 12-16-59; Alaska Statutes § 09.20.010; Arkansas Code § 16-31-102; California Penal Code § 893; Colorado Revised Statutes § 13-71-105; Conneticut General Statutes § 51-217; Delaware Code § 4509; Georgia Code § 15-12-163; Hawaii Revised Statutes § 612-4; Idaho Code § 2-209; Indiana Code § 33-4-5.5-11; Iowa Code § 607A.4; Kentucky Revised Statutes § 29A.080; Louisiana Code of Criminal Procedure Article 401; Maryland Code § 8-207; General Laws of Massachusetts, Chapter 234A § 4; Michigan Compiled Laws § 600.1307a; Minnesota Rules of Practice for District Courts, Rule 808; Missouri Revised Statutes § 494.425(5); Nebraska Revised Statutes § 25-1601; Nevada Revised Statutes § 6.010; New Hampshire Revised Statutes § 500-A:6; New Jersey Statutes § 2B:20-1; New York Judiciary Law § 510; North Carolina General Statutes § 9-3; North Dakota Century Code § 27-09.1-08; Pennsylvania Consolidated Statutes § 4502; South Carolina Code § 14-7-810; South Dakota Codified Laws § 16-13-10; Utah Code § 78-46-7; Vermont Statutes Annotated § 962; Washington Revised Code § 2.36.070; West Virginia Code § 52-1-8; Wisconsin Statutes § 756.02; Wyoming Statutes § 1-11-101.
35. In People v Guzman 478 NYS 455 (1984), the court, in obiter dicta, stated that a deaf juror who only knows American Sign Language and does not know English does not meet the New York statutory requirements for jury service that a person understand and communicate in English. See also para 3.29-3.35.
36. American Bar Association, Into the Jury Box: A Disability Accommodation Guide for State Courts (1994) at 20.
37. This problem is discussed in para 3.29-3.35, 6.6, 6.7.
38. Arkansas Code § 16-33-304; California Code of Civil Procedure § 228(b); Colorado Revised Statutes § 13-71-105; Illinois Supreme Court Rules, rule 434; Iowa Court Rules of Civil Procedure, Rule 287(f); Iowa Court Rules of Criminal Procedure, rule 17-5; North Carolina General Statutes § 15A-1212; Oregon Revised Civil Procedure § 57D(1)(b); Utah Rules of Criminal Procedure, rule 18(e); Washington Revised Code § 4.44.170.
39. Arkansas Code § 16-31-102; Florida Statutes § 913.03(2); New York Judiciary Law § 510; Oregon Revised Statutes § 10.030.
40. Georgia Code § 15-12-1; Michigan Compiled Laws § 600.1307a; Tennessee Code § 22-1-103(7); Texas Government Code § 62.109.
41. Alaska Statutes § 09.20.030; California Rules of Court Rule 860(d)(5); Maine Revised Statutes § 1213(2); Nebraska Revised Statutes § 25-1601; Nevada Revised Statutes § 6.030; New Mexico Statutes § 38-5-11B(1); New York Standards and Administrative Policies (Part 28 Uniform Rules for the Jury System) § 128.6-b(1); Rhode Island General Laws § 9-10-9; Utah Code § 78-45-15; Vermont Statutes Annotated § 962.
42. American Bar Association, Into the Jury Box: A Disability Accommodation Guide for State Courts (1994) at 10.
43. 42 USC § 12102-12213.
44. 42 USC § 12132.
45. 28 Code of Federal Regulations § 35.130(b)(7).
46. See for example People v Caldwell 603 NYS 2d 713 (1993).
47. See for example, Kansas Statute § 75-4355a --- 75-4355d; Missouri Revised Statutes § 476.750, 476.753.
48. American Bar Association, Into the Jury Box: A Disability Accommodation Guide for State Courts (1994) at 21-37.
49. 452 F Supp 1235 (1978).
50. People v Guzman 478 NYS 455 (1984) at 465-467; DeLong v Brumbaugh 703 F Supp 399 (1989); United States v Dempsey 830 F2d 1084 (1987). See also para 3.25-3.29.
51. Colorado Revised Statutes § 13-71-137; Connecticut Superior Court Rules § 16-1; Florida Statutes § 90.6063; 705 Illinois Compiled Statutes § 315/1(a); West Virginia Code § 52-1-8(e)(1).
52. West Virginia Code § 52-1-8(e)(2).
53. Florida Statutes § 905.17(3).
