Bid for Jury Fluent in Sign Language Fails

A defense attorney, acknowledging that her request was unprecedented, argued unsuccessfully Tuesday that a jury fluent in American Sign Language be seated for a rape trial in which both the defendant and the alleged victim are deaf.

Public defender Mara Feiger said jurors who could directly interpret for themselves the testimony of the victim and other witnesses could best judge their credibility, because of the nuances of body language that are critical in sign language.

A court-appointed sign language interpreter, Feiger said, would not be able to translate that body language, thereby compromising the jurors’ ability to fully comprehend the testimony and weigh the veracity of the witnesses.

But Riverside County Superior Court Judge Gordon J. Burkhart denied the request. He agreed with the prosecutor that using an interpreter to vocalize signed language is no different from employing a qualified interpreter in a trial in which witnesses speak a foreign language.

Burkhart said, however, that he would allow the defense to present an expert to explain and interpret to the jury the subtle body language used by the deaf witnesses. But he said he would not allow that expert to opine whether the witness was telling the truth based on body language--a request made by the defense attorney but vehemently opposed by the prosecutor.

The case involves two students at the California School for the Deaf in Riverside. Jesse Manuel Macias, 19, is accused of raping a 17-year-old girl on campus in June. There are no witnesses to the alleged rape. The girl told investigators she cried for help--but the deaf students in the vicinity could not hear her. She reported the assault to a school counselor.

Legal experts said the case illustrates a serious--and perhaps unsolvable--problem: How much of a witness’ testimony is fully understood by jurors, when it is necessarily filtered through an interpreter?

The problem is more critical in cases involving sign language than those involving a foreign spoken language “because there is greater use of nonverbal cues in American Sign Language, cues that do not go interpreted,” said David Raizman, executive director of the Western Law Center for Disability Rights and an associate professor at Loyola Law School in Los Angeles.

“While every language and culture has [physical cues] to some degree, they are central to the structure of American Sign Language,” Raizman said. “Something always gets lost in the interpretation.”

Such nonverbal cues include the positioning of eyebrows, the crinkling of a nose, the shape of the mouth and the motion of the head, sign language experts say.

But seating a jury fluent in American Sign Language, Raizman said, runs counter to fundamental trial law because it would be tantamount to the use of a professional jury--a jury selected specifically because of its technical expertise.

The U.S. Constitution calls simply for trial juries to represent a cross-section of the community where the trial is heard. Efforts to seat all Spanish-speaking juries, for instance, have been denied, legal experts note.

Feiger, Macias’ attorney, argued in court that if jurors do not understand American Sign Language, “it will be the jury that is handicapped” in trying to fully assess the credibility, quality and demeanor of the prosecution’s witnesses.

She noted that her own witnesses would be subjected to the same assessment by jurors fluent in American Sign Language.

She said the jury could be selected from a cross-section pool of people fluent in American Sign Language, identified through utility records showing which people use devices to assist the hearing-impaired.

Riverside County Deputy Dist. Atty. Cynthia Brewer warned that even jurors who are expert in American Sign Language might still interpret the witnesses’ testimony differently. Better, she said, that one interpreter serve on behalf of all jurors, so all hear the same testimony.

Outside the courtroom, Brewer said that if the defense argument were carried “to its illogical extension, do we impanel a completely Russian-speaking panel if the defendant or victim is Russian-speaking? This can become preposterous.”

Raizman said the Americans With Disabilities Act calls for disabled people to have equal opportunities, but does not seek to “change what is being provided to other citizens.”

The criminal justice system, he said, “has to allow for these kinds of communicative problems. There are idioms in other languages that don’t translate well, either.”

Added USC law professor Charles Weisselberg, “There may be some concerns [with interpretation], but it washes both ways” and can affect both the prosecution and defense cases equally.