A mock trial by jury involving Deaf jurors was held in Sydney last year – the first of its kind – to assess whether they could effectively participate with interpreters. Jemina Napier who set up the trial and Alastair McEwin who is challenging a ban on Deaf jurors in Australia tell the BDN why this was put to the test.
The idea of a jury is so that someone accused of a crime is judged by a panel of their peers. When any group – for example, women or black people – is excluded from jury service it affects how representative any subsequent jury can be.
So why does Australia ban Deaf people from participating in jury service? When Alastair McEwin made a legal complaint to the New South Wales government, saying it was discrimination, he lost. His was just one of many futile challenges made by Deaf people in the country.
The idea for a mock trial came from a research team which has been investigating why the legal profession in Australia was so resistant to the idea of Deaf jurors. Here, research leader Jemina Napier and McEwin tell the BDN what the trial.
Other countries have removed bans on Deaf people carrying out jury service, with the US including Deaf people in juries since 1979. Australia’s neighbour New Zealand saw its first juror participate using interpreters in 2005.
Meanwhile, in the UK and Ireland, legal challenges to exemptions for Deaf people carrying out jury service saw these removed during the 2000s. But these advances have stalled on the belief that an interpreter would effectively be a non-juror stranger in the jury room – banned by common law. Which brings us back to Australia where the issue has arisen.
To date, Deaf Auslan users have not been able to serve as jurors. They are exempt from serving as jurors if they are unable, because of sickness, infirmity or disability, to discharge the duties of juror.
Drisana Levitzke-Gray came close when she was called up for jury service in Perth, West Australia in 2014. Rather than being exempt as would have happened before, she remained on the selection panel until the final group of 40, showing that there was a potential willingness to accept that Deaf people could serve as jurors using interpreters. Even though she was not empanelled on to the jury, her story made the news across Australia.
There are two cases currently being heard in the country which assert the rights of Deaf people to serve as jurors. One of these was brought by Auslan user Alastair McEwin (one of the writers of this article) who, after all his attempts to remove discrimination from government policy against Deaf people serving as jurors in New South Wales proved fruitless, decided to raise a complaint with the United Nations. The Australian Human Rights Commission tried to conciliate the matter between McEwin and the NSW government – but it was not successful. McEwin is now seeking a remedy through a Communication to the UN, under the UN Convention on the Rights of Persons with Disabilities (CRPD). He says: “ While there is a movement … to redress the barriers to Deaf people serving on juries, there still remains much to be done to enable them to participate equally in fulfilling this important civic duty.”
The other case involves Gaye Lyons who accused the State of Queensland of discrimination as she was prevented as serving as a juror on the basis of her deafness and the fact that she had requested an Auslan interpreter. The tribunal upheld the decision that Lyons was ineligible to serve in 2014. After an appeal proved unsuccessful, Lyons and her legal team are now planning to take her case to the UN. Napier (co-author of this piece) had been an expert witness in Lyons trial. She says: “[The result] was disappointing … as there is evidence to show that there is no reason why Deaf people cannot serve as jurors.”
What research told us
Many of these cases fall because of a fear within the legal profession that the presence of an interpreter will impede on court proceedings. But is there any evidence to back this up?
A number of studies carried out by the New South Wales Law Reform Commission and Macquarie University looking at the accuracy of legal translation suggests not. Researchers translated judge summations into Auslan – six Deaf participants watched these while six hearing people listened to the summation recordings. It was found that Auslan translations of judge summations were accurate enough to be deemed acceptable. The findings showed that both groups misunderstood some legal concepts and terms but that the Auslan translations were adequate enough to allow the Deaf participants to effectively access what the judge had been saying.
Despite these findings, Deaf people in New South Wales continue to be exempt from jury service.
A matter of perception?
If research shows that interpreter translations are not an issue, what is the problem? Could it be people’s perception of Deaf jurors?
This was put to test in a study of legal professionals and sign language interpreters with experience of working in the court system in Australia, Canada, the US, UK, Ireland, South Africa and New Zealand.
These people were surveyed on their views of Deaf jurors and the importance of being able to hear evidence in the courtroom. Respondents with experience of working with Deaf jurors stated that clear policy and a commitment by judges to allow Deaf people to serve usually involves selecting matters that have less reliance on oral evidence, for example, tape recordings of phone calls.
Researchers felt that among the legal profession the rights of the victims and/or the defendant are seen as more important than the rights of Deaf people to participate in jury service. However, legal professionals said they would not necessarily exclude Deaf people from jury service based on their deafness but that a major concern was the notion of the interpreter as the 13th person in the jury room. There is a perception that an additional person in the room may effect the jury deliberations and a lack of understanding that interpreters won’t contribute to the discussion but just interpret it.
“Research tells us the biggest barrier is uncertainty about the presence of a Deaf juror and an interpreter. It was time to set up a mock trial to test this out ”
So what research tells us is the biggest barrier is uncertainty about the presence of a Deaf juror and an interpreter and the impact this would have on a trial. Having seen this uncertainly first hand, researchers decided something had to be done to test whether there was any need to be concerned. It was time to set up a mock trial.
Putting theory to test
Set up in Sydney by Jemina Napier and her colleagues at the University of New South Wales and Australia Catholic University in collaboration with governmental, legal and Deaf/Auslan organisations, the trial set out to find out:
• whether Deaf jurors are able to access a courtroom trial and jury deliberations via Auslan interpreters
• how Deaf people can participate in jury deliberations when relying on an interpreter
• what the impact of having an interpreter as a “13th person” in the jury room would be
• how the presence of a Deaf juror impacts on the administration of justice from the
perspective of all participants in a courtroom from judges to defendants.
To make it as real as possible the trial was held at the Sydney West Trial Courts, facilitated by the NSW Department of Justice. Authentic legal practitioners and actors playing witnesses carried out the mock trial which was observed by a jury comprising eleven hearing jurors and one Deaf juror who accessed proceedings using two Auslan interpreters. Hearing jurors were briefed about the role of an interpreter. The whole trial and jury deliberations were filmed.
After the trial ended, project investigators set to work. They interviewed the participants (actors, witnesses, legal professionals, court personnel, Deaf jurors and Auslan interpreters) and held a focus group with the hearing jurors as well as analysing footage of the trial. The findings would prove to be encouraging…
Interpreting and jury deliberations
It was in analysis of the jury deliberations where some of the more revealing findings emerged. In working out the percentage of overall time taken by each juror (12.32% for the Deaf juror) coupled with the number of juror turns researchers found that the Deaf juror was an active participant in the jury deliberation process.
“The Deaf juror had greater attention to detail than most of us’. It was obvious that the information that the Deaf juror had was the same as what we’d had”
Responses from hearing jurors indicate there was general agreement that the Deaf juror “had greater attention to detail than most of us”: “It was obvious that the information that the Deaf juror had was the same as the information that we’d had. They were asking the same questions and putting forward the same points and so it seemed very clear that they were getting a good view of the information, as good a view of the information as we seemed to.”
And that old fear among the legal profession that interpreters would influence deliberations… well, during the focus group the hearing jurors noted that the interpreters “didn’t get involved at all, themselves”, and that when asked to comment, interpreters politely stated “we have a code of ethics, we can’t really answer that”. One juror commented: “I wouldn’t even know what their point of view was about the case. I don’t think they stepped over that boundary or anything.”
Some jurors admitted to being initially distracted by the presence and positioning of the interpreters, but this was temporary and they got used to having the interpreters present. Discussion in the juror focus group suggested that people were comfortable with the Deaf juror and interpreter with one saying that “when we came to deliberate, [the Deaf juror] was so specific of what he heard, but he didn’t hear anything. It was what was interpreted to him. So everything that had got interpreted was spot on”.
The next step
Investigators are continuing with their analyses and are also making preparations to present their preliminary findings to a range of stakeholders, including Deaf people, Auslan interpreters, court and other legal personnel and policymakers, through a number of focus and discussion groups.
Researchers feel that the outcomes of this research have the potential to pioneer law reform not only in Australia, but also in other countries such as the UK and Ireland where the 13th person rule remains a barrier.
The question is will the legal profession listen.
Jemina Napier is Professor and Chair of Intercultural Communication at Heriot-Watt University, Edinburgh, Scotland, and Adjunct Professor in the Department of Linguistics at Macquarie University. Alastair McEwin is a Deaf lawyer, bilingual in Auslan and English, who is the Executive Director of Community Legal Centres NSW, and chairperson of the World Federation of the Deaf Expert Group on Human Rights. Acknowledgement: The projects reported in this article were made possible through funding from the NSW Law Reform Commission, and various Macquarie University research grants.
Ireland and UK
Legal challenges to exemptions for Deaf people carrying out jury service saw these removed in Ireland and the UK during the 2000s. However, concerns remain within the legal profession around the role of sign language interpreters and whether they could potentially inappropriately participate in confidential jury. Judges in both countries have also expressed concern about having a 13th person in the jury room, which would breach jury law.
The US leads the way, allowing Deaf people to take part in jury service since 1979. Cases such as Dempsey and Guzman have found very few impediments to allowing signing deaf people to serve as jurors. US courts require that sign language interpreters remain neutral in jury discussions and that they swear an oath to maintain confidentiality of jury proceedings, as any juror would be required to do so.
While Deaf and blind people have been legally allowed to participate in jury service in New Zealand since its 1981 Juries Act, it wasn’t until 2005 before a Deaf person was empanelled. David McKee turned up for his jury service not expecting to be selected but ended up being elected foreman by his fellow jurors. The Deaf Studies professor carried out his service using NZSL interpreters throughout the trial and jury deliberation.