National Association of the Deaf

On Thursday, July 16, 2009, North Carolina legislators debated whether to permit deaf people to serve on a jury. Caution – some of the statements made during that debate are alarming. Excerpts from the debate are followed by commentary. If you want the right of citizenship to serve on a jury, and you live in North Carolina, ask your representative to read this article.

Excerpts from Unofficial Transcript – SB293 – “Juror Qualifications/Electronic Juror List”

http://voterradio.com/legislature/archive/2009/index.php

House Daily Session - Thu, July 16, 2009

Representative Rick Glazier introduced the bill that would permit deaf people to serve on a jury and require the provision of qualified interpreters. The bill was passed by the state Senate and was sent to the state House. The House Judiciary Committee and Ways and Means Committee both unanimously reported out favorably on the bill. Representative Glazier also said, “The administrative office of the courts has no opposition to the bill and has not asked for any additional money.”

Representative N. Leo Daughtry opposed the bill and said: 

Ladies and gentleman, the way the law is now, it says that you can serve on the jury if you can hear and understand the English language. Pretty well knocks out the blind and the deaf. And one of the reasons for that is the idea of a juror being able to look at the demeanor of the witness. . . . And I don’t see how, practically, our courtrooms are going to be able to handle an additional interpreter and I don’t see how we can pay for it. I just think that this is a bill that means well, but I don’t see how it can work in a fair way with the way our facilities are now.

Representative Ronnie Sutton opposed the bill and said:

Ladies and gentlemen, this is a well-intended, good-sounding bill, but let’s put it in real-world terms. A deaf person sitting on a jury is going to miss a vast majority of what takes place in a jury trial. The interpreter cannot interpret quick enough to describe the inflection of a witness’s voice and things of that nature. You know it just seems to me that this is really an example of taking political correctness too far. . . . If this is the case, why not blind people serving on juries? Why not quadriplegics serving on juries from their bed. You know, it’s just, that just shows you, in my opinion, the absurdity of having a deaf person on a jury. You know we don’t have quadriplegics running track. Nor do we need to have deaf persons serving on juries. . . . But if you think about this realistically, folks, as an attorney, I’m never going to let a deaf person serve on a jury. It’s not going to happen. And no other responsible attorney, do I think, would allow that. But you only have so many preemptory challenges [to dismiss a potential juror without having to give a reason]. So you may have cases where you’re going to be, have a person’s life or their safety or something like that depending upon a deaf person sitting there who depends upon on somebody interpreting what’s happening in the courtroom. And I just think this is going too far and I think we need to stop this before it gets out of hand.

Representative Bill Faison opposed the bill and said:

This bill puts you in a terrible situation if you’re trying to represent and help people. If you’re in a courtroom, either someone’s freedom or their property is at issue. . . . But if we were to pass this bill, and I am sitting in a courtroom and a person who is hearing challenged goes into that box, I cannot, in the effective representation of my client, allow that person to continue to sit for the deliberation because they cannot physically, fully participate in the process, with or without an interpreter. Sometimes in the cases I do there are some medical terms. I’ve got to make sure people understand those. I will never know if that translator got it right or not. . . . And, for that reason, you would force me, if we pass this, you would force me into a position of having to use a preemptory challenge. I’ve only got eight of them. . . . And to put a person in the box that’s going to force me to burn one of those, straight out, for no other reason other than the fact that they cannot participate fully and meaningfully in the trial process. And that I cannot know whether the communication with them and from them is clear and correct, is not a fair thing to do to the litigants of this state, who are having to go into a courtroom to try to have their property rights or their freedom evaluated. 

Representative Bill Faison then made a motion to re-refer the bill back to the Ways and Means committee.

Representative Rick Glazier opposed returning the bill to committee. He said: 

First, I’ve spoken with the ADA interpreter coordinator. There have already been trials in this state where we have used interpreters and where they have been allowed by courts. Secondly, this is the law in a number of states that have enacted similar provisions since 1987. . . . I think that a deaf, or a hearing impaired juror, who has the capacity to participate fairly and impartially ought to be allowed. It’s what’s being requested. There is really no legitimate reason whatsoever to re-refer this bill. 

Representative Paul Stam spoke in favor of returning the bill to committee. He said:

I thought this was the law anyway because there was a similar bill in 1989 . . . and I spoke against it. . . . My reasons are the same as Representative Sutton and Faison. The purpose of a trial is not to satisfy the needs of the jurors. . . . The purpose of a trial is to do justice. . . . Justice is about having 12 people hear and understand what goes on and making a decision. 

Representative R. Phillip Haire spoke in favor of returning the bill to committee. He said:

. . . as an attorney . . . I agree with all that’s been said.  I don’t really see how this can work. And, one thing I think about is, the interpreter. Does the interpreter understand the words that are being said? And if you say something, you know, words have different meanings as well. And, if the interpreter hears what he or she thinks is one word and interprets another one to the person, it’s entirely, it’s entirely different. And so, you know, I think the perils are much greater than the feel-goodness in this bill. 

Representative Verla Insko asked questions about the bill, but did not say whether she would vote to return the bill back to committee, or not.

Representative Ruth Samuelson opposed returning the bill to committee. She said:

. . . I’ve had a number of hearing-impaired friends and have worked with the sensory impaired. And I’ll tell you, they may not hear that inflection, but they’ll see it. And they’ll see things that all of the rest of us will miss. . . . because we think we hear, we think we see, we think we understand. And as for the interpreters, the interpreters are highly trained and oftentimes their vocabulary is way above the rest of us because they have to learn not only to do it in English but to do it in sign language. 

Representative Ronnie Sutton asked whether “presently in North Carolina, there are deaf people serving on juries?” Representative Rick Glazier responded that he believes “hearing impaired people have served on juries and where they’ve need interpretive services to assist, judges have ordered those interpretive services.” Representative Ronnie Sutton said, “They were in violation of the law.”

A representative [unidentified male] spoke for a second time in favor of returning the bill to committee and said:

. . . I just don’t believe . . . that deaf people are serving on juries in the state of North Carolina. Now, some with hearing loss, no problem. Some with hearing aids, no problem. But I don’t know, I’ve never heard of a deaf person serving on a jury in North Carolina. And, if they did, in my interpretation, they were violating the law by doing so. And I would think that we would keep it that way.

Representative Wm. C. "Bill" McGee spoke in favor of returning the bill to committee and said:

. . . you don’t have the same courtroom discipline in the jury room. The jurors could have three or four conversations going on among themselves while discussing the case. . . . And I think that a juror who can’t hear, having an interpreter there, having to depend on the interpreter, might miss a critical conversation. 

Representative Deborah K. Ross opposed returning the bill to committee. She said:

. . . there may be perceptions that are brought to a trial that haven’t been brought to the trial before that actually benefit the finding of truth in the case. And there are plenty of people who can hear but who don’t listen. And somebody who can’t hear pays a lot more attention to try to find out what’s really going on. It very well may make all the other jurors pay closer attention and not talk over each other in the jury room and go one at a time and have a better deliberative process if there’s somebody who is hearing impaired in the jury room. . . . So why would we give up an opportunity to let all of our citizens exercise their rights of citizenship in a way that will do nothing to hurt the system, but might enhance it. I ask people to think beyond their own experiences here for ways that this might be a positive thing, not just for the citizens who might now get to serve, but for the whole process.

Representative Grey Mills spoke in favor of returning the bill to committee and said:

Folks, there’s a lot of stuff going on when you go to trial. Much will be lost in translation, be it tone of voice or sarcasm from the witness stand, to things flying around in the jury deliberation room . . .

Representative Nick Mackey spoke in favor of returning the bill to committee and said:

The things that go on in a courtroom during the course of a trial would require that the members of the jury be able to make their independent judgment in order to give . . . the full benefit of their deliberations. 

Representative Johnathan Rhyne, Jr. spoke in favor of returning the bill to committee and said:

I would just suggest to the members that the debate we’ve had today argues for sending the bill back to committee. We’ve spent the last two days talking about corporal punishment and the role of a jury in the ultimate decision of life and death. And what we want to make sure is that when decisions like that are made, decisions depriving people of their liberty and their property, that those decisions are being made based on the facts and the proof given in the courtroom. And wherever you fall on this particular issue, clearly, this bill needs some more work.

Representative Pat McElraft asked questions about the bill, but did not say whether she would vote to return the bill back to committee, or not.

Representative Rick Glazier made a motion to postpone the matter until Tuesday, July 21st. A vote was taken [64 in favor and 54 opposed] and the bill was moved to next Tuesday, July 21st.  [Update:  The calendar (agenda) for July 21, 2009, was changed and the bill was not heard.  SB 293 was placed on the calendar for July 22, 2009, but was not heard.  SB 293 was re-calendared for Monday, July 27, 2009.  Representative Glazier's request to move SB 293 to the calendar for Tuesday, July 28, 2009 was granted.  See NC Still Undecided About Deaf Jurors for further updates.  Editor]

Commentary

The Americans with Disabilities Act (ADA) and the North Carolina bill (SB 293) require “qualified interpreters” when necessary to ensure equal opportunity and effective communication with deaf jurors. The term “qualified interpreter” is specifically defined in the ADA regulations as one who can, expressively and receptively, interpret accurately, effectively, and impartially, using any necessary specialized vocabulary.  In addition to qualified interpreters or other accommodations to ensure equal opportunity and effective communication, modifications may also be necessary.  For example, people may have to take turns talking one at a time. Such modifications would probably benefit everyone.  They may even help ensure that justice is served.

When people express concerns about justice being served when a deaf person serves on a jury, imagine the concerns this raises for the deaf person who is a defendant, a plaintiff, or a witness.  Isn’t there an expectation that the provision of qualified interpreter services or other accommodations ensures access to the court proceedings and effective communication in those cases?  Isn’t there an expectation that justice will be served in every case? Why then is it conscionable to think that justice would not be served when the deaf person is a juror?  What if the deaf person was the defense lawyer or prosecutor?  Or the judge?  In every case we expect justice to be served, including cases where a deaf person is a juror.

Here’s some information for North Carolina legislators: 

See the U.S. Department of Justice Technical Assistance Manual for ADA Title II – http://www.ada.gov/taman2.html – which provides the following:

Because of the importance of effective communication in State and local court proceedings, special attention must be given to the communications needs of individuals with disabilities involved in such proceedings.  Qualified interpreters will usually be necessary to ensure effective communication with parties, jurors, and witnesses who have hearing impairments and use sign language.  For individuals with hearing impairments who do not use sign language, other types of auxiliary aids or services, such as assistive listening devices or computer-assisted transcription services, which allow virtually instantaneous transcripts of courtroom argument and testimony to appear on displays, may be required.

See the National Association of the Deaf Advocacy Statement: Communication Access in State and Local Courts (2008): http://www.nad.org/issues/justice/courts/communication-access-state-and-local-courts

See the U.S. Department of Justice settlement in a Houston case that includes deaf and hard of hearing jurors in the list of court participants entitled to interpreters or other accommodations.  http://www.ada.gov/houston.htm

See the federal court policy about deaf and hard of hearing jurors at http://www.nad.org/issues/justice/courts/communication-access-federal-courts.

In addition, virtually every court that has heard a case involving the issue of whether individuals with a sensory disability, including individuals who are deaf or hard of hearing, are qualified to serve on a jury have determined that such individuals are so qualified.

The North Carolina law – as it is today – requiring jurors to have the ability to hear – is discriminatory on its face. It may be a “per se” violation of the Rehabilitation Act of 1973 and the ADA.  It should have been changed decades ago.

[Update:  The calendar (agenda) for July 21, 2009, was changed and the bill was not heard.  SB 293 was placed on the calendar for July 22, 2009, but was not heard.  SB 293 was re-calendared for Monday, July 27, 2009.  Representative Glazier's request to move SB 293 to the calendar for Tuesday, July 28, 2009 was granted.  See NC Still Undecided About Deaf Jurors for further updates.  Editor]

Message to North Carolina representatives:  Vote in favor of SB 293.