http://youtu.be/_7uYtXD_J34 (BSL version)
Jury service in adversarial court systems is an important civic duty and responsibility. Jurors have to understand and weigh up evidence presented, assess the credibility of witnesses and decide on the likelihood of certain events having occurred in the light of their own personal experiences.
There has been increasing interest in whether deaf sign language users should be permitted to serve as jurors. In the USA deaf people have been serving as jurors in criminal trials since 1979. Legal challenges in the UK and Ireland have established that deaf people have the capacity to make decisions as jurors, and can sufficiently comprehend courtroom discourse and jury deliberations through a sign language interpreter (Heffernan, 2010). A deaf woman served on an inquest jury in the UK in 2011, and in Ireland they have increased the pool of potential jurors, but deaf people still cannot serve as jurors in criminal trials in either country (Farrell, 2013).
In early 2014, Gaye Lyons in Australia lost her discrimination case for being turned away from jury service, and may take a complaint to the United Nations. On a positive note, more recently Drisana Levitzke-Gray was the first deaf sign language user in Australia to participate in the jury selection process with an interpreter, although she did not get selected onto the final jury. This month a deaf woman in Scotland has been summoned for jury service and intends to ask for an interpreter.
The sticking point is the long-held common law that there cannot be a non-juror ‘stranger’ (i.e., an interpreter) as a 13th person in the jury room. The main concern has been that interpreters would inappropriately participate in confidential jury deliberations. As interpreters, we know that we are bound by a code of ethics, which requires us to remain impartial and uphold confidentiality.
There is no evidence for the impact that an interpreter may have as 13th person in the jury room on the sanctity of jury deliberations, either negative or positive. The only empirical research on deaf jurors to date has been conducted by Jemina Napier and David Spencer (2006, 2008), which has provided evidence that deaf and hearing jurors equally misunderstood content of jury instructions, and therefore deaf people are not disadvantaged by relying on sign language interpreters; and that legal professionals and sign language interpreters surveyed perceive that with supportive and clear policies and guidelines, and sufficient training for interpreters and court staff/stakeholders, deaf people can successfully serve as jurors (Napier, 2013).
Yet there is a lack of evidence for what actually happens in the jury deliberation room, and whether the assumption that the presence of an interpreter could impact (negatively) on the deliberation process is valid. Currently, Jemina Napier and David Spencer are working with a bigger team of experts in interpreting and law research, including Sandra Hale, Debra Russell and Mehera San Roque, on an Australian Research Council funded project to conduct a case study of a mock- criminal trial and jury deliberations with a deaf juror and interpreters to focus specifically on the analysis of interactions in the jury deliberation room.
The outcomes of this research have the potential to pioneer law reform worldwide, and have an impact on the provision of interpreting services in courts for deaf people. Watch this space…
Author: Jemina Napier