Judge and Jury – The Reality!

keaton-behind-bars-varietyAfter the frivolities of sex last week it is back to more serious topics. Yesterday I met with the Juries Commissioner in Melbourne to discuss the issue of juries and access for deaf people. It was an interesting conversation and we touched upon many topics. In Australia, as suggested by Paul in response to the earlier article Judge and Jury, the sticking point is the issue of the 13th person in the jury.

It is not only interpreters that are a 13th person.  A person who is a carer for someone who is a quadriplegic is also considered to be a 13th person. Legally any person in a jury room, participating 0r otherwise, is seen to have influence on the jury. A decision of a jury, under the law, must involve only 12 people. There must not be any influence from outside people. The Juries Commission are working on the issue and trying to find a way around it. As it stands at present the Judges of the courts are standing firm.

It may seem unfair, minor even silly but it got me thinking about the impartiality of an interpreter in any situation. By chance yesterday I bumped into an interpreter and we had a brief discussion of my meeting with the Juries Commissioner . The interpreter, a very experienced NAATI level III interpreter, admitted that in any situation there was potential to misinterpret not only what is being said but also the mood of the speaker. She mentioned that it is possible to interpret a speakers emotion as angry when, in fact, they are only being firm and assertive. In a court situation this could influence the feelings and deliberations of the deaf juror or in the case where the deaf person is on trial, the jury as a whole.

I had a bit of a google on interpreters and juries.  I came across a transcript of an interview by Damain Carrick on the Law Report, ABC Radio. The interview touched on being a person in a foreign country. Perhaps an English speaking  person has been caught with drugs or alcohol in an Arabic country. They will be tried in the court of the country they are in. Interpreting the language of the country is fraught with danger.  In the interview it was explained that Arabic does not have a word for toes. A rough translation of toes into Arabic would be fingers of my feet.  A bizarre example, I am aware, but it made me think of similar situations of translating English to Auslan and visa-versa.

What follows is an example of a translation gone wrong that was also provided in the same ABC interview “‘I only saw the little blade that, I mean like, like, it was shiny, that’s all and that’. That’s a translation of the original, and the interpreter says ‘I just saw the shiny blade of the knife’ Think about this. What was said originally was something along the lines of,   – “I saw something shiny, and very small that MIGHT have been a knife.” Yet the interpreter has said that the blade of  knife was CLEARLY seen. This is very different from what the speaker actually meant and would give the impression that a knife was definitely seen when in fact it was not. To make things more complicated I have given my own interpretation of the original. I would hazard a guess that ten people would provide 10 different interpretations.

BUT whatever interpretation is provided it can clearly influence the individuals thought process. In the situation above the interpreter was an indigenous language interpreter. The indigenous language interpreter has provided an inaccurate interpretation. Imagine that there is a deaf juror and they receive this inaccurate interpretation in sign language. When the time comes to decide guilty or not guilty whose thoughts are being provided by the deaf juror. Are their thoughts their own or have they been influenced by a poor interpretation from the interpreter. Clearly 13 people are at work and not 12.

Perhaps that is just the way the cookie crumbles BUT when a decision has to be made as to whether a person is guilty that could lead to life in prison who has the greater right. The deaf person that wants to take part in the jury or the person on trial? Clearly the sensibilities of the deaf juror that may be offended by their exclusion are insignificant in comparison to the person facing life in prison.

The other side of the coin is the deaf person who is on trial. What happens if the interpreter gets what they are saying wrong? What if they portray the wrong emotion or provide an inaccurate English translation. Do we abort the trial? Or do we continue.? We can argue that if deaf people must run the gauntlet of being misinterpreted when on trial then equally they should be able to stand on a jury if they so decide.

It is not an easy dilemma to deal with. It is very complicated with a million shades of grey. The interpreter may also not be familiar with legal strategies, styles of questioning, types of responses required and so on.  It is really a legal and ethical quagmire. To the credit of the Juries Commissioner in Melbourne he is trying to find a way forward. For us the deaf and the disabled we need to step down from our high horse a little and consider all the ramifications involved.

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14 thoughts on “Judge and Jury – The Reality!

  1. “The interpreter, a very experienced NAATI level III interpreter, admitted that in any situation there was potential to misinterpret not only what is being said but also the mood of the speaker. She mentioned that it is possible to interpret a speakers emotion as angry when, in fact, they are only being firm and assertive. In a court situation this could influence the feelings and deliberations of the deaf juror or in the case where the deaf person is on trial, the jury as a whole.”

    “The interpreter may also not be familiar with legal strategies, styles of questioning, types of responses required and so on.”

    How is this any different to a stenographer? They too dont know what is coming yet they have to interprete and record what is being said in court. Sure this occurs during court proceedings and the court/judge is reliant on the skills/abilities of the stenographer to relay back what was said ‘word by word’ so why should we be limiting ourselves to just sign lanaguge interpreters?

    I think we are being too narrow focused on just the issue of sign language interpreters than looking at the issue of communication access in the 21st century. Time for the court and community to move on and keep up with the times.

  2. I did ask that question Jack.It is apparent today that most court transcripts are recorded digitally. Very few are now done using a stenographer. The other difference is that the Stenographer is an impassive recorder, recording, suppposedly, verbatim what is said and not interpreting or conveying emotions as to what has been said. I could be wrong but also the stenographer, if used, is not part of the jury deliberations that must be kept to 12.

    There is a difference between recording and interpreting and being part of the jury. I essentially agree with what you are saying about moving with the times but the answers are not really that simple.

    As an example we discussed a case where jurors were provided with 12 volumes of transcripts. thia led to a juror being dismissed because they have reading issues, perhaps dyslexia or were technically illiterate. For the change to come there is much that needs to be thought through and planned. A standard might have to be established where all transcripts have to be produced in audio ansd text. All jurors will need to be screeneed for potential access needs. Disclosure needs to occur and so on.

    It was an eye opener for me meeting with the Juries Commissioner in terms of the scale of the change that is needed. To his credit he is proactively seeking solutions.

  3. Perhaps we need to be careful that we are not duped to think that the likes of the Juries Commissioner is proactively seeking barriers than solutions. If we are to go down the same paths as to what this Juries Commissioner is taking (getting into the technicalities of things) you will find a very very very small portion of people who will be ‘perfect’ for the role of a juror whether they have a disability or not.

    In regards to reference to text/transcription, I think I recall that the juror can take notes of the court proceedings and use this in the deliberation within the Jury room. Therefore the chance of his interpretation and what was said in the court proceeding can differ. Therefore if this is happening as we speak, then the so called ’13th person’ – being the notepad – should also be excluded. And we can go even further if we want to create more barriers and deficiencies about a D/deaf person’s needs.

    In the old days in America, a black person would often be judge by his jury of peers and this often consist of white people. Obviously, this black person knew his/her chances were doomed but fought for human rights and fairness and nowdays we see ‘jury of peers’ being at times balanced (white and black people).

    Therefore my question here is – and being hypothetical – if a Deaf person was ordered to stand trial, would his ‘jury of peers’ be a fair representative in his/her case purely because the current jury system is so overly paranoid about the ’13th person’ the he/she will really not have much hope in this regards.

    Maybe the old days of interpreting (by welfare workers) may have left a poor image / perception in the legal system however I like to think we have moved on and upwards and that the rights Deaf and hard of hearing person should take precedent over technical and unsubstantiated issues as outlined above.

  4. Ah Jack yiu sound like someone I know. The note pad is a record of your own thoughts so not a relevant argument. Still u and not tarnished by the thoughts of an extra person.

    Other than that I agree with you. we are just lucky the JC guy is willing to work on it he could so easuly hide behind the law but isnt. Wants to change it but change comes from above him and he needs to cover all bases.

    Slow an excruciating like pulling teeth but thems the breaks.

  5. I think what Jack is saying as some merit. The notepad issue is still relevant when you consider it being a communication tool which forms part of what happens in the juror room. Whether it was communicated live or later or written by someone else doesnt matter.

    Here is a couple of links that may inspire you a bit and perhaps you may want to consider passing this on to the Jurier Commissioner:

    In 1993 a Deaf Juror was appointed in USA:

    http://www.seattlepi.com/archives/1993/9306210040.asp

    In 2000, another Deaf juror was appointed:

    http://www.salisburypost.com/2000january/011400f.htm

    This one is much more relevant and topical to this posting which not only discuss about the USA case but also what has been occuring in UK (which uses the similar law system in Australia). What I like about this article is that it focus on the positiveness of a Deaf person being a juror. It even mentions how a blind juror or even women were once not allowed to serve as on a jury.

    http://www.learnsignlanguage.co.uk/2008/03/hearing-no-problem-for-deaf-juror.html

  6. I must say that this was an interesting article.

    I have to say that I’m inclined to agree with the Juries Commissioner regarding the 13th person in the jury room and the impartiality of the 13th person.

    In my studies in Legal Studies at school – juries have been seen and argued to be flawed in many way – especially if there is a juror who has a strong personality and has a way of convincing the other 11 jurors of his/her opinions. The general consensus is that despite the potential flaws in having unlearned and inexperienced jurors, it has worked for centuries and the jury has generally given the same verdict as what the judge would have given.

    I have also shared university classes and lectures with signing interpreters. One thing I must say about signing interpreters is that before they can be a signing interpreter for a juror – they must be extremely skilled in being impartial and removing all potential room for bias. The signing interpreters I’ve witnessed are generally very expressive and emotive in addition to their signing. The signing interpreters do not seem to copy the speaker (Speakers tend to be very boring and dull – signing interpreters are much more expressive and interesting to watch) and failing to copy the speaker means the interpreter is potentially embellishing on what is being said by adding the emotions/expressions. In my opinion, if an interpreter is surprised by a response – it’ll show that the interpreter is either convinced or unconvinced – thereby influencing the Deaf person’s decisions.

    With regard to the following paragraph …
    What follows is an example of a translation gone wrong that was also provided in the same ABC interview “‘I only saw the little blade that, I mean like, like, it was shiny, that’s all and that’. That’s a translation of the original, and the interpreter says ‘I just saw the shiny blade of the knife’ Think about this. What was said originally was something along the lines of, – “I saw something shiny, and very small that MIGHT have been a knife.” Yet the interpreter has said that the blade of knife was CLEARLY seen.

    I’m inclined to think that this sentence was taken out of context. Good lawyers would have questioned the witness again for a more concrete answer “Did you or did you not see a knife?” and/or “So you saw something shiny, but it is possible that it wasn’t a knife?” Lawyers are there to remove doubt (or instill doubt if in opposition) so although there are room for translation errors in words, the lawyers have been trained to make it as clear as possible. However I believe that a signing interpreter would have added expressions they believe should be added to that sentence – expression of hesitation, doubt or if the interpreter believed it was a knife – it would be a nodding “shiny blade” thereby influencing the Deaf person’s decision whether there is doubt or not.

    I think the problem for the Juries Commissioner is whether the signing interpreters are appropriately trained and qualified to identify and remove possible areas of influencing the Deaf person. And even if an interpreter was allowed – a decision to appeal could simply be pinned on the use of the interpreter if the interpreter was believed to have inadvertently influenced the juror.

    This is especially important if the Deaf person (like Keith Davis from the link (http://www.learnsignlanguage.co.uk/2008/03/hearing-no-problem-for-deaf-juror.html) is very strong willed and opinionated. Keith Davis had two signing interpreters – therefore two additional people that could have influenced his decision (two more than the other jurors). His decision would have been based on how the information was relayed, as well as how well the questionings were done by the lawyers. Keith also appears to have dominated the jury discussions, therefore potentially spreading the influence from the interpreters to the rest of the jury. It must be questioned whether the interpreters were prevented from reading/hearing the news and/or discussing the case with their friends/family.

    I was surprised that the jurors discussed the case to the journalist who wrote that article – in Australia – that article could have been enough for a case to be over-turned and appealed. Jurors are not allowed to discuss the case or how the decision was made – that means identifying who were the biggest speakers in the jury?

    Having a Deaf person in the jury with a signing interpreter is indeed like opening a can of worms – and the best start would be to determine which interpreters are appropriately trained and skilled (with legal knowledge) to provide the most impartial interpretation as possible. Have there been any studies on how Deaf people can be influenced by their signing interpreters by any chance?

  7. Craig, really great response and much food for thought. Your point about the lawyers being trained to elicit certain responses and get the picture clear for the Jury is a valid one. Even so as the lawwyer follows their line of questioning they will ask questions in a way that need to be interpreted and re-interpreted. This highlights just how important it is to have an interpreter that is familiar with legal strategies and processes.

    Dean I am with you and I think most people are. But for it to happen a lot of awareness needs to occur. laws need to be changed and processes to identify support needs established. All doable but as Craigs response shows infinitely complicated.

    I will be keeping in touch with the Juries Commissioner and hopefully can bring updates as they arise.

  8. Any interesting insight Craig.

    To further stir the pot and to think broadly here, I wonder how this would apply for remote captioning access given there is a large majority of Australians with a hearing loss who cannot rely on sign language interpreters but prefer live text based communication.

  9. This is an interesting post,which provided me with further insight on what are the arguments against having a deaf juror. It seemed it seemed people are too hung up on the influence of the interpreters, whereas in courts we have 11 other jurors, as well as the defence and prosecuting solicitors – and not forgetting the judge – who potentially have the same capabilities to influence the proceedings. Or other jurors are just as equally culpable to the influence of barristers and fellow dominant jurors? Should we also look into that?

    I feel the main emphasis should lie on the correct interpretations of FACTS. I am sure interpreters may embellish but usually it is served to convey meaning – just like a barrister would, with flowery language or clever use of words. I feel it is the jury’s responsibilities to weed out embellishment to get to the facts. moving away from the olden days when the juries were easily swayed by emotions. It is hard to factor in the moral codes of every single juror up on duty and they will all have their own interpretations and fallibility, engineered by their own socio-background whatnots. Wouldn’t Justice be fairly meted out to the defendants better when the facts are examined and tested thoroughly, devoid of any emotional influence?

    Also, if the Deaf juror is the more dominant member of the jury then are we alarmed by this, especially when dominant hearing jurors are occurring on different cases, without deaf jurors.

    Oh dear, my mind is now shooting off in different directions now. I think I need another cuppa to mull over this…..and a ciggie too 🙂

  10. Yup saltbar, they aare hung up on it. But change is infinitely easier if you understand the arguments .. it helps to unhang them so to speak 🙂

  11. More to the point, they are muddying the waters. In nutshell, it implies deaf people are not capable of distinguishing facts from fluff and, moresoever, we are prejudged as we enter the justice system when others (hearing without disabilities) are accepted for jury duty without hesitation. All we need a fookin’ good interpreter however flippant that might sounds.

  12. Hi Gary,

    Your blog entry was very interesting to read. I have to say I do think there would be huge scope for misinterpretation of not only words by the interpreter, but also their body and facial expressions. I can speak from experience at university. I had a stenographer to transcribe what the lecturer said into words as I couldn’t always understand them. One particular lecturer I had is a good example of how stenographers/interpreters can exaggerate actions/expressions when transcribing what the lecturer said. Said lecturer had a habit of blurting out controversial and offensive comments on a variety of topics not even remotely related to the class he was supposedly lecturing in. Whenever he said something controversial or offensive, I wouldn’t understand so I would look at the stenographer who would also look at me and would raise her eyebrows before I looked at the screen to see what he said. At the beginning of the semester her reactions were what I would describe as neutral, meaning her reactions to his comments was similar to the “average” student in the class. However, as time passed, she began to dislike his attitude and arrogance more and more and I would most certainly see this in her facial responses to his controversial and offensive comments as they became stronger each time, stronger than that of the “average” student in the class. In summary, you can see from my personal experience how having an interpreter could probably be regarded as having a 13th juror especially if it is a lengthy trial developing the likelihood of the interpreter developing his/her own personal stance against the accused or witnesses and therefore “influence” the deaf juror to some extent.

    Furthermore, while hearing impaired people make up a small part of society, the issues in interpretation alone make it seem illogical in allowing a small group of deaf people on jury service. It is a case of costs exceeding benefits. Given that in jury service it selects “average citizens” to be involved, there is a huge population to select from, excluding a small group of people doesn’t change anything. In addition, I’m not sure what the legal consequences are regarding members of the jury should the defence lose, however, I’m guessing that clever lawyers would be able to use the deaf person and/or interpreter in his/her application for an appeal by arguing that the process wasn’t proper because the deaf person may have been prejudiced by the interpreter.

    Perhaps the deaf juror could get 2 interpreters he/she have never met and see if the interpreters express the same expressions to see if any bias would come out of it. Moreover, the issue of impartiality and professionalism arise when appointing an interpreter for a deaf juror. Ideally, for the process to be impartial, the interpreter will have had no previous communication with the deaf juror. However, this presents a problem, given how small the deaf community is, especially in small towns, it is unlikely that a deaf person will not have had any previous contact with the interpreter. Otherwise, if the deaf person does know or has had previous communication with the appointed interpreter, initially the deaf person will be able to pick up on some bias. However, as the case proceeds (long trials aren’t uncommon) the deaf person is likely to feel comfortable in their relationship with the interpreter and therefore get used to their facial expressions and habits and lose their ability to pick up on the interpreters personal bias, meaning the case is not professional or impartial. Obviously, lawyers could use this in their applications for an appeal. Not only there is a problem of how comfortable the deaf person feels towards the interpreter, there would also be conflict in the interpreter feeling comfortable towards the deaf person. In my personal example with the stenographer and lecturer, at the beginning the stenographer was simply doing her job and copying exactly what the lecturer said and react to his comments the same way as the “average” student did. However as time proceeded she felt comfortable in letting her personal stance or feelings of the lecturer be known to me and therefore shared her version of what the lecturer said with me, meaning she let her guard down only because I had responded similarly and developed that rapport with her, therefore she would feel comfortable in sharing her personal feelings of the lecturer with me. Accordingly, I would get a different version from the rest of the class. Consequently, this would present a problem in court especially in lengthy trials, unintentionally removing the professionalism in interpretation.

    Regards,
    Alex

  13. Saltbar – As I said – the use of jury is not perfect and has many flaws, but they have been tried and tested for centuries. There have been several cases where the defendant/prosecution have successfully lodged an appeal because the judge demonstrated some bias in summarising the case and explaining what decisions must be made. One example was when a judge was seen to be smirking when explaining the jury must decided if the defendant was guilty beyond reasonable doubt – the smirk was almost noticable as a quiet laughter. Even the judge is considered liable to influencing the jury. I realise you think we’re getting caught up on the interpreters, but the point is the deaf juror would have two extra people (the interpreters) that could have influenced him/her. That’s two more people than the other jurors, and this increases the risk of bias/influence occuring. I don’t think people should be alarmed at the idea of a Deaf person dominating the discussion – but having an extra two areas of influence means the Deaf person has potentially SPREAD that extra influence onto other jurors. If a juror read a newspaper article about the relevant case and that juror dominated the discussions – then that juror would have spread the bias and prejudice from the newspaper onto the rest of the jury. (suitably called contamination perhaps?)I don’t think the situation implies that Deaf people can’t distinguish fact from fluff, I think the court officers would be more concerned about protecting the integrity of the Justice System – a system which has remained that way for centuries.

    Alex raises several very valid points – one being that Deaf people tend to know their interpreters well – either professionally or socially (if having used the services regularly, and/or if the interpreters are known to socialise with them. Interpreters at uni socialised with the class members in the breaks – we always enjoyed their company). Hypothetically, if you had an interpreter who was utterly professional, but you have had social interactions with him/her – could you honestly say that during the two weeks of intensive trial that you and/or the interpreter(s) would not falter and occasionally slip up and give expressive facial reactions. A simple slip up would be *Opens eyes slightly wider than usual and looks intently at the ground or the wall in disbelief or annoyance* A Deaf person familiar with the interpreter (as it is likely to be the case) would be more likely to pick up this tiny facial reaction and could gauge what s/he is thinking. I repeat – two weeks of intensive interaction. Two weeks of looking at two people for majority of the court case. Could you honestly say that you would not develop a silent and unknown trusting rapport with the interpreters? Could you honestly say that the Deaf juror and the interpreter(s) would not smile to each other or exchange any form of facial communication in the two weeks? The lawyers don’t build this interaction with the jurors and neither would the judge.

    More importantly – the judge and lawyers cannot enter the deliberation rooms, whereas the interpreter(s) could – hence them being labelled the 13th person. The interpreter(s) would be hard pressed to remain stoidly professional through all that process – especially when the deliberation discussions are happening, and if there are jurors who may have strong opposing opinions to them. The question is – would an interpreter who had not see or heard about the case whatsoever be more impartial in the deliberation room than an interpreter who was present for all or half of the court proceedings?

    Gary – perhaps this is a solution to ask the Jury Commissioner – whether getting three or four highly skilled interpreters would be more suitable – two for the court proceedings, and one or two (who have not been exposed to the court case in any way) for the deliberations.

    It’s a difficult topic to remain objective with. These discussions could trigger ideas for further development, but I seriously doubt the Deaf ‘rights’ to be treated equally as a hearing peer in the courts would take precedence over the protection of the justice system which has operated this way for centuries. As far as the Jury Commission appears to be concerned – the risks are too great and the ramifications too severe.

  14. Also, to minimise the rise of familiarity – the court system may wish to have a national pool of highly skilled and qualified interpreters from around the country – so they can select an interpreter who has never met the juror to remove the initial area of bias. The courts may have to pay for extra costs (flight and hotel/rent) on top of the interpreting fee. Having said that – having a national pool may not work well because of differences in sign language between states and territories… It’ll be too costly!!! I’ll admit defeat.

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