Inclusive Juries—Access for People who are Deaf, Hard of Hearing, Blind or Have Low Vision: Consultation Paper (html)

6. Can inclusive juries prejudice fair trials?

6.1 It is necessary that the participation of people in the subject groups does not prejudice the fairness of trials. In this chapter we refer to research showing that some members of the community and the legal profession hold the view that people in the subject groups may not be competent to fulfil the role of juror. We then refer to further research which demonstrates that these views are not based in evidence. Finally, we examine situations in which the accepted limitations of some people in the subject groups will prevent them from acting as jurors.

The right to a fair trial

6.2 The International Covenant on Civil and Political Rights provides that everyone shall be entitled to a fair and public hearing before a competent, independent and impartial tribunal’.^[1] This right is protected in Victoria by the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).^[2] Under the common law, the right to a fair trial encompasses the hearing rule, which is the right to be heard before a competent tribunal, and the bias rule, which is the right of a party to have a matter determined by a decision maker who is free from bias and is seen to be unbiased.^[3]

6.3 The right to a fair trial is a paramount consideration. The New South Wales Law Reform Commission (NSWLRC) observed:

fairness of the trial takes precedence over the potential rights of a prospective juror. However, prospective jurors should not be lightly excluded from an important civic duty. It is important to ask whether the administration of justice is adversely affected by denying the contribution that some in the community would be willing and able to make, and whether thereby the representativeness of the jury is compromised.^[4]

6.4 Examples of mechanisms to ensure impartiality in the jury system were provided by the Commission in its report Jury Empanelment, including:^[5]

• the excusal process, which allows jurors to apply to be excused from particular trials

• challenges, including peremptory challenges and challenges for cause and to the array^[6] as well as Crown stand asides

• judicial discretion to exclude a prospective juror

• the fact that jurors swear an oath or affirmation to maintain the secrecy of jury deliberations

• directions given by the judge to the jury to only take into account evidence presented at trial.

6.5 Improving participation for the subject groups does not mean undermining these safeguards.

6.6 It is fundamental to a fair trial that a juror can comprehend evidence, follow court proceedings and deliberate effectively with their fellow jurors. Two issues arise in relation to the competency of jurors in the subject groups. First, some people believe that a juror who is deaf, hard of hearing, blind or who has low vision is generally not competent to serve as a juror.^[7]

6.7 Second, there is a concern that depending on their individual circumstances and the nature of the particular case at hand, a person in the subject groups may not be able to perform the duties required of a juror when it comes to evaluating certain types of evidence, even where reasonable supports are provided.^[8]

The competence of people in the subject groups

Misconceptions

6.8 Academic research suggests that there are concerns both amongst legal professionals and people in the community about the accuracy of Auslan interpreting and misconceptions about the capacity of people who are deaf to participate as jurors.^[9] These misconceptions are often grounded in discriminatory views, beliefs and myths about people with disability.^[10] However, research has demonstrated that there is nothing inherent in hearing or vision loss that means a person cannot perform the role of a juror.

Deaf jurors

6.9 Extensive academic research has suggested that there are no significant practical impediments to people who are deaf serving on juries. Four key empirical research studies were conducted by Professor Jemina Napier, Professor David Spencer, Professor Sandra Hale and Professor Mehera San Roque from three different universities over the past decade.^[11] The overall conclusion was that people who are deaf should be able to serve on juries because they ‘have the ability to understand complex legal discourse in a courtroom setting using sign language interpretation and, therefore, are able to discharge the functions of juror.’^[12]

6.10 The accuracy and translatability of Auslan sign language interpreters was examined in two separate research projects. The first involved 12 jurors, the second involved 60 jurors. Half of the participants in the projects could not hear. The findings concluded that ‘both deaf and hearing jurors equally misunderstood some terms and concepts, and that deaf people do not appear to be at a disadvantage by accessing the information indirectly through an interpreter.’^[13] The initial study found that there was 87.5 per cent accuracy in the translation from English into Auslan, a mere 2.8 per cent difference in accuracy in the responses from hearing participants.^[14] Despite some shifts between legal definitions or objectively presented facts, the accuracy of the Auslan interpretation in both projects was such that the jurors were able to understand the information presented and contribute accordingly.

6.11 Observations of deaf jurors in United States court rooms, and surveys of interpreters and legal professionals about the role of the deaf juror in trials more broadly were also conducted. It was reported that:

interpreters in the US with experience in interpreting for deaf jurors were confident, if protocols were established [in Australia], deaf people could effectively participate as jurors.^[15]

6.12 In 2014 a mock jury trial was held in Paramatta, New South Wales, to investigate the capacity of people who are deaf who use sign language to serve as jurors.^[16] It was found that the deaf juror was an active contributor, contributing to 12 per cent of the overall jury deliberation process.^[17] The involvement of the interpreter did not undermine or destabilise jury deliberation and any distractions were only temporary. ^[18] Finally, the judge reported that the mock trial was in no way different to other trials he had been involved in. The judge was of the view that judges and all court staff should be trained in how to run proceedings that involved Auslan interpreters.^[19]

6.13 A recurring theme in the academic research is the importance of shifting prejudice and incorrect assumptions that a non-hearing juror would not be able to perform to the same standard as a hearing juror. ^[20] The main barrier to participation that was identified was navigating the standards, quality, supply and logistics of providing Auslan interpreters, but the research concluded that this did not represent a compelling reason to prevent participation.^[21]

Blind jurors

6.14 Blind jurors can hear oral testimony, discussion, trial instructions and deliberations. The key issues raised in relation to blind jurors is their inability to observe visual evidence or the demeanour of witnesses.^[22]

6.15 In some situations, crucial evidence in a trial may be visual in nature. This may exclude a person who is blind from sitting on the jury. However, as the NSWLRC observes:

the mere fact that there is evidence in the form of documents, diagrams, photographs and so on need not result in automatic exclusion of a blind juror, as in many cases there will be no issue as to its interpretation, and the content can be conveyed successfully through description or using technology. In the Commission’s view the use of reasonable adjustments provide scope for facilitating the inclusion of a person who is blind or has low vision on the jury panel.^[23]

6.16 In the United States, courts have held that people who are blind are also presumptively capable of assessing physical evidence, with appropriate supports, such as a trained describer.^[24]

6.17 In the recent case of Commonwealth v Heywood^[25] the Supreme Court of Massachusetts considered on appeal whether an error in law had been made to allow a blind person to serve on the jury. The court held that:

The trial judge did not abuse her discretion in finding juror competent to serve on jury despite the juror’s blindness.^[26]

The decision was entirely appropriate. Because the identification of perpetrator was not in question, the jury had to determine only whether the victim suffered serious bodily injury. As the injuries suffered by the victim were not visible at the time of trial, the ability to see the victim’s face during his testimony was not essential to reaching a verdict. Similarly, because of the internal nature of the injuries and subsequent surgery, photographs of the victim’s face taken close in time to the assault would not have assisted the jury in determining whether the victim suffered serious bodily injury. On the other hand, the juror had appropriate access to the testimony of the victim and the medical records, which were directly relevant to the question whether the victim suffered serious bodily injury.^[27]

6.18 United States courts have also determined that blind judges are able to assess evidence, although they may need to excuse themselves in cases that rely heavily on visual evidence.^[28]

6.19 The inability to visually observe the demeanour of witnesses is another issue raised to counter the involvement of blind jurors. The manner in which a person gives evidence, especially under cross-examination, can be important to determining credibility. Case law indicates that relevant factors include demeanour, tone of voice, manner of speech, spontaneity in answering the question and ‘whether the plaintiff answered questions in a manner designed to satisfy the questioner or to give honest and truthful answers’.^[29]

6.20 The NSWLRC identified that judicial pronouncements have downplayed the significance of demeanour (and verbal cues) as a determinant of credibility in favour of more objective evidence.^[30] This trend has continued.

6.21 In Fox v Percy, the High Court stated:

In recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.^[31]

6.22 While recognising its drawbacks, demeanour evidence can still be a decisive factor in appellate courts giving weight to a trial judge’s assessment of the evidence.^[32] For example, in a 2016 case the High Court indicated that ‘the meaning of an admission depends as much on the way it is stated as on its content; and, in this case, the judge had the significant advantage of seeing and hearing [the witness] make the admission’.^[33] People in the subject groups have not served on juries in Victoria. The appellate courts have therefore not had to consider a scenario where a juror might not have been able to see or hear a witness and relies on other means to assess the credibility of a witness.

6.23 The abundant ‘scientific research’ referred to in Fox v Percy reveals that judges and lay people are routinely inaccurate when assessing the credibility of witnesses on the basis of their demeanour. For example, studies indicate that conventional wisdom about the behaviour of ‘liars’, including that ‘liars look away, fidget, speak in a higher pitch or are more likely to be nervous’ are unfounded in evidence.^[34] Other studies have shown that a person’s ability to discern when someone is lying ‘functions only slightly better than random chance’.^[35]

6.24 The Judicial College of Victoria’s Serious Injury Manual emphasises:

the importance of accounting for objectively established and undisputed facts. The existence of such facts may form a powerful barrier to any contrary conclusion, regardless of any credibility assessments the court makes in relation to individual witnesses.^[36]

6.25 Judges will often make a general direction to the jury that reliance on demeanour evidence must be ‘kept in balance with other considerations’.^[37]

6.26 While people who are blind may not have access to visual cues, they can still assess credibility on the basis of verbal cues (with the opposite applying for deaf and hard of hearing jurors) and are not necessarily significantly disadvantaged in comparison to other jurors. The NSWLRC observed that people who are blind and deaf, ‘like most others, have found ways of encountering, and coping with, everyday life, including the attempt to assess the truthfulness of what people say to them’.^[38]

6.27 The National Federation of the Blind cites studies finding that people who are blind are able to assess credibility evidence by focusing on verbal elements:

In evaluating testimony, blind jurors can concentrate on verbal testimony while avoiding distractions like a witness’s facial expressions, dress, appearance, and body movements. Even visual cues indicating deception, like nervous tics, darting glances and uneasy shifting, are nearly always accompanied by a corresponding audible cue such as throat-clearing, swallowing, voice quavering, or inaudibility.

As one blind juror described, ‘I’ve found that I’ve been pretty accurate—probably as, if not more accurate, than people who make eye contact, because people have gotten real good about fooling people on the visual level, but people often don’t think about how they sound when they speak.’ Another blind juror, who served on a murder trial, observed that ‘[p]eople can control face muscles … Nobody thinks about the nuances of the human voice.’^[39]

6.28 This is corroborated by findings that ‘the face is the easiest ‘channel’ for a liar to control, while voice is the hardest’.^[40]

6.29 The NSWLRC ultimately concluded that:

The argument that an inability to observe demeanour should disqualify a blind or deaf person from jury service contains at least three assumptions; first, that demeanour always conveys information that aids in the interpretation of what has been consciously communicated; secondly, that the witness to another’s demeanour can interpret it accurately; and thirdly, that blind and deaf jurors are deprived of the opportunity of detecting demeanour …^[41]

While it can be important, the value of observable demeanour evidence, according to a substantial body of research, appears to have been overstated and, as such, accorded too much value as a tool for judging credibility … Consequently it is an inappropriate determinant in the issue of eligibility for jury service.^[42]

Actual capacity limitations

6.30 There may be situations where a prospective juror is unable to perform their role because of the nature of evidence in a trial and their inability to adequately comprehend it, even with supports.

6.31 An example might be if a case turns upon identifying a voice in a phone call or on identifying a person from a photograph or CCTV. In Latorre v The Queen^[43] the key piece of evidence was a voice mail message, and the jury was required to determine whether it was the applicant’s voice on the line. In such cases, the submission of voice evidence does not require expert testimony and it ‘ultimately fall[s] to be considered by the jury in the context of appropriate instructions by the judge.’^[44] This principle applies to both visual and voice identification evidence.^[45] It may not be possible in this situation for a person who is deaf to serve.

6.32 In the next chapter the Commission explores how these concerns can be addressed.

1. International Covenant on Civil and Political Rights, GA Res 2200A (XXI), UN Doc A/RES/2200A(XXI) (16 December 1966) article 14.

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2. Charter of Human Rights and Responsibilities Act 2006 (VIC) s 24(1).

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3. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) [3.140] <https://www.lawreform.vic.gov.au>.

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4. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 11 <https://www.lawreform.justice.nsw.gov.au>.

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5. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) [3.120] <https://www.lawreform.vic.gov.au>.

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6. A challenge to the array is a common law right to challenge the entire panel. It requires the party to establish that there has been bias on the part of the Juries Commissioner or the pool supervisor or some other default in respect of the constitution of the panel. This form of challenge is rare: Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) <https://www.lawreform.vic.gov.au>.

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7. Jemina Napier and Alastair McEwin, ‘Do Deaf People Have the Right to Serve as Jurors in Australia?’ (2015) 40(1) Alternative Law Journal 23, 26; David Spencer et al, ‘Justice Is Blind as Long as It Isn’t Deaf: Excluding Deaf People from Jury Duty—an Australian Human Rights Breach’ (2017) 23(3) Australian Journal of Human Rights 332, 341.

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8. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 51 <https://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report-114.pdf>; David Spencer et al, ‘Justice Is Blind as Long as It Isn’t Deaf: Excluding Deaf People from Jury Duty—an Australian Human Rights Breach’ (2017) 23(3) Australian Journal of Human Rights 332, 345.

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9. David Spencer et al, ‘Justice Is Blind as Long as It Isn’t Deaf: Excluding Deaf People from Jury Duty—an Australian Human Rights Breach’ (2017) 23(3) Australian Journal of Human Rights 332.

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10. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) [1.9] <https://www.lawreform.justice.nsw.gov.au>. See also Sandra Hale et al, Participation in the Administration of Justice: Deaf Citizens as Jurors (Australian Research Council Linkage Project No 120200261, 2016).

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11. UNSW Sydney, ‘Article on Deaf Jurors Wins Human Rights Award’, Newsroom (Web Page, 23 March 2018) <https://newsroom.unsw.edu.au/news/social-affairs/article-deaf-jurors-wins-human-rights-award>; Sandra Hale et al, Participation in the Administration of Justice: Deaf Citizens as Jurors (Australian Research Council Linkage Project No 120200261, 2016); Jemina Napier et al, ‘Changing the International Justice Landscape: Perspectives on Deaf Citizenship and Jury Service’ (2018) 19(2) Sign Language Studies 240; Jemina Napier and Alastair McEwin, ‘Do Deaf People Have the Right to Serve as Jurors in Australia?’ (2015) 40(1) Alternative Law Journal 23.

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12. David Spencer et al, ‘Justice Is Blind as Long as It Isn’t Deaf: Excluding Deaf People from Jury Duty—an Australian Human Rights Breach’ (2017) 23(3) Australian Journal of Human Rights 332, 332.

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13. Jemina Napier and David Spencer, ‘Jury Instructions: Comparing Hearing and Deaf Jurors’ Comprehension via Direct or Mediated Communication’ (2017) 24(1) International Journal of Speech Language and the Law 1, 20.

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14. Jemina Napier and Alastair McEwin, ‘Do Deaf People Have the Right to Serve as Jurors in Australia?’ (2015) 40(1) Alternative Law Journal 23, 25.

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15. Ibid 27.

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16. Sandra Hale et al, Participation in the Administration of Justice: Deaf Citizens as Jurors (Australian Research Council Linkage Project No 120200261, 2016) 3.

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17. Ibid 31.

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18. Ibid 21.

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19. Ibid 16.

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20. Ibid 13.

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21. David Spencer et al, ‘Justice Is Blind as Long as It Isn’t Deaf: Excluding Deaf People from Jury Duty—an Australian Human Rights Breach’ (2017) 23(3) Australian Journal of Human Rights 332, 334.

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22. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 50 <https://www.lawreform.justice.nsw.gov.au>.

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23. Ibid [3.8].

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24. People v Caldwell, 661 NYS 2d (1997) 714; People v Hayes, 923 P 2d 221 (Colo App, 1995) 226–7.

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25. Commonwealth v Heywood, 484 Mass 43 (2020) [43].

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26. Ibid 1020.

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27. Ibid [46].

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28. See, eg, People v Brown, 62 NY 2d 743 (1984); State v Cocking, 55 Mont 169 (1923).

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29. Judicial College of Victoria, Serious Injury Manual (Report, 2015) ch 5 <https://www.judicialcollege.vic.edu.au/eManuals/SIM/53962.htm>, citing Woolworths Ltd v Warfe [2013] VSCA 22 [114]; Markes v Futuris Automotive Interiors & Anor [2014] VCC 1420.

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30. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) <https://www.lawreform.justice.nsw.gov.au> 51.

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31. Fox v Percy [2003] HCA 22, [31]; (2003) 214 CLR 118, [31]. See also CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1.

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32. David Hamer, ‘The Unstable Province of Jury Fact-Finding: Evidence Exclusion, Probative Value and Judicial Restraint after IMM v the Queen’ (2017) 41(2) Melbourne University Law Review 38, 26.

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33. Robinson Helicopter Co Inc v McDermott [2016] HCA 22, [54]; (2016) 331 ALR 550, [54].

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34. Judicial College of Victoria, Serious Injury Manual (Report, 2015) ch 5 <https://www.judicialcollege.vic.edu.au/eManuals/SIM/53962.htm>, citing Michael Green, ‘Credibility Contests: The Elephant in the Room’ (2014) 18(1) International Journal of Evidence and Proof 28; Aldert Vrij, Detecting Lies and Deceit: Pitfalls and Opportunities (John Wiley and Sons Ltd, 2008); Paul Ekman and Maureen O’Sullivan, ‘Who Can Catch a Liar?’ (1991) 46(9) American Psychologist 913.

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35. Judicial College of Victoria, Serious Injury Manual (Report, 2015) ch 5 <https://www.judicialcollege.vic.edu.au/eManuals/SIM/53962.htm>, citing Steven I Friedland, ‘On Common Sense and the Evaluation of Witness Credibility’ (1989) 40(1) Case Western Reserve Law Review 63; Charles F Bond Jr. and Bella M DePaulo, ‘Accuracy of Deception Judgments’ (2006) 10(3) Personality and Social Psychology Review 214.

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36. Judicial College of Victoria, Serious Injury Manual (Report, 2015) ch 5 <https://www.judicialcollege.vic.edu.au/eManuals/SIM/53962.htm>.

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37. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) [3.15] <https://www.lawreform.justice.nsw.gov.au>.

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38. Ibid [3.16].

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39. National Federation of the Blind, National Federation of the Blind of Massachusetts and Disability Law Centre, ‘The Right of Blind People to Serve on Juries Comes to the Court’ [2019] Braille Monitor <https://www.nfb.org/images/nfb/publications/bm/bm19/bm1909/bm190912.htm>, citing D Nolan Kaiser, ‘Juries, Blindness, and the Juror Function’ (1984) 60(2) Chicago Kent Law Review 19; and Matthew J Crehan, ‘Seating the Blind Juror’ (1997) 81(3) Judicature 104.

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40. Peter McClellan, ‘Juries—Common Sense and the Truth’ in Law and Order and the Jury System (Conference Paper, New South Wales Crown Prosecutors Annual Conference, 25 March 2008) <http://138.25.65.17/au/journals/NSWJSchol/2008/5.pdf>; Jeremy Blumenthal, ‘A Wipe of the Hands, A Lick of the Lips: The Validity of Demeanor Evidence’ (1993) 72 Nebraska Law Review 1157.

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41. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) [3.14] <https://www.lawreform.justice.nsw.gov.au>.

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42. Ibid [3.15].

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43. Latorre v The Queen [2012] VSCA 280; (2012) 226 A Crim R 319.

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44. Ibid [70].

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45. Ibid [144].

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