After a brief summer hiatus, LifeinLincs is back with plans afoot to rejuvenate the regularity of the blog posts….

In the meantime, I wanted to post an update about the deaf juror research that I am involved in with colleagues in Australia. I posted a previous blog about this topic in February this year, and have recently returned from Australia where we completed the data collection for the Australian Research Council funded project.

The data collection involved the organisation of a mock trial involving 11 hearing jurors, a deaf juror and two sign language interpreters. The trial involved other participants who were genuine legal practitioners: legal aid solicitors, advocates and a retired judge. Two actors were hired to play the role of defendant and witness, and the case was adapted from a real drugs case tried originally by one of the advocates. The whole 1.5 day mock trial and 2 hour jury deliberation was filmed and all participants were interviewed on completion of the trial. We are now in the process of analysing the data, to determine the nature and level of impact that the presence of a deaf juror and interpreters may have on the jury deliberation process.

The data collection went extremely well, due to the careful planning of the research team and the support from Legal Aid NSW in identifying a suitable case and legal personnel to participate, Deaf Australia to assist with recruiting a deaf juror, Sign Language Communications NSW and the NSW Deaf Society in providing the interpreters, the Australian Sign Language Interpreters Association (ASLIA) on advising on legal interpreting issues, and the NSW Department of Attorney General & Justice in securing us a courtroom to use at the Parramatta trial courts precinct.

The research received a great amount of Australian and international media attention. I was recently interviewed by Radio National New Zealand about the research and the mock trial. For people who can hear, you can listen to the interview (19 minutes long) at: http://www.radionz.co.nz/national/programmes/nights/audio/20146479/interpreting-legal-language.

In order to provide access to the Deaf community to the interview, I have had it transcribed (thanks to our HWU research associate, Robert Skinner). The transcript can be found below. Apologies for the length of this posting, but this is the only way I can make the transcript available.

This research has the potential to effect major international law reform, so is of interest to researchers and practitioners in legal, forensic linguistics, interpreting studies and deaf studies disciplines.

Interview between Presenter Bryan Crump, on Radio National NZ Nights program and Prof Jemina Napier, on Wednesday 20th August 2014

BC = Bryan Crump, JN = Jemina Napier

BC Justice is blind!

Well, in an ideal world it should be but it could cope with the deaf if it wanted to, at least that’s the
argument from Professor Jemina Napier from Heriot-Watt University, which is in Scotland, but her recent
work has been in Australia encouraging the court system in New South Wales to embrace deaf jurors.

Jemina is on the line now from Edinburgh, Scotland, cue to Jemina. Welcome to Nights.

JN Thanks very much for having me on.

BC What’s the situation with deaf jurors in most countries? I think it might be possible to be deaf and be on
a jury in New Zealand?

JN That’s right. There has only ever been one case in New Zealand, shortly after the New Zealand Sign Language
Act was put in to place. A deaf man was called and he asked for an interpreter, and they provided it. I
think that’s been the only case so far that I know of but at least it has happened in New Zealand. In the
United States deaf people can systematically serve as jurors throughout the country, but so far the
majority of other countries like Australia, the UK and Ireland that have a similar adversarial court
system, don’t actually allow deaf people to serve as jurors for various reasons. There are slightly
different interpretations of the law and why that’s the case, but essentially they regard it as not being
able to participate in the judicial process.

BC Given Edinburgh is on the other side of the world to Australia what’s been the catalyst for you to get
involved in the court system there?

JN I was actually in Australia for 15 years, I’m British originally…[…] I was actually at Macquarie University
in Sydney for a long time and the research that I’m involved in was initiated by the New South Wales Law
Reform Commission.

About 10 years ago they actually set up a reference group at the request of the New South Wales Attorney
General to look at whether deaf people could serve as jurors. So they asked me to do some initial research
and it’s been an ongoing research agenda from then. We’ve had various projects to explore this issue from
different angles if you like. Just to try and test the different questions about the feasibility of deaf
people serving and then I came over to Australia again recently, after moving back to Edinburgh, but I was
back in Australia to do the last piece of the puzzle really.

BC Just looking at Australia for a start, what is the reason for excluding deaf people from juries?

JN It actually varies from State to State, because Australia is a federated system…

BC Yeah, yeah, each State and Territory has its different court system.

JN Absolutely, so for example in Queensland where there is actually a case, a woman is suing for
discrimination. She was rejected from serving on a jury, a deaf woman, the reason given to her, it came
under the definition of “mental capacity”. Whether she had the capacity to serve as a juror…

BC That was the judge’s reasoning? Did a judge rule on this?

JN Apparently a court officer. Yeah that’s right, it was a court officer’s reasoning, yeah.

BC Really? Because…

JN Yeah.

BC Ok, I’m going to give some judges credit here, because mental capacity has been applied to a deaf person,
surely a judge wouldn’t be that stupid? No. This is a bad call.

JN Which is why she took it to court, for discrimination. Because she says she does have the mental capacity
but she couldn’t access the proceedings because she needed to sign language and she asked for an
interpreter and they refused to provide that accommodation for her. She actually lost the trial initially
but she has gone to appeal and she is planning on taking it to the United Nations under the Convention for
the Rights of people with Disabilities if she doesn’t get through.

BC What’s been the response to the Queensland legal system to that? Has there been a debate in Queensland
about this?
JN There’s definitely been some media coverage. I think the interesting thing is that the appeal Gaye Lyons is
taking forward is because the judge had considered she wasn’t treated unreasonably and that she wasn’t
discriminated against. The judge felt that the judicial officer who made the decision had made a reasonable
decision at that time with the information that was presented to them at that time. It’s an interesting
debate around disability rights, civil rights but also what’s called “reasonable accommodation”. So
normally under disability discrimination law you have to demonstrate if you have been discriminated
against. If someone can’t reasonably accommodate for your needs, and so the argument really is against what
is considered to be reasonable or not.

BC Now this is possibly where your work comes in, because you have been involved in setting up an experimental
trial. A ‘trial’ trial in Sydney is it? Using at least one deaf juror?

JN That’s right, the reason I was back in Australia recently, like I said for the last piece of the puzzle,
running a mock trial.

Ultimately all of the different research that we’ve done has shown there doesn’t seem to be any impediment
for deaf people serving as jurors. We know this happens in the United States.

The argument is there is a Common law, if you like, that there can only be 12 people in a jury room, in a
jury deliberation room. So if you had a deaf person in there with a sign language interpreters that then
means there is 13,, potentially 14 people, in there because of the working conditions they often need to
work in twos. But no one has been able to test what the impact of that would be in a deliberation room
because no one can go into a deliberation room. So what we did was set up this mock trial. We ran a trial
for a day and a half, which was based on a real case, a drugs case. We had a deaf juror and 11 hearing
jurors who went in to the deliberation room with two sign language interpreters working, and we filmed
everything, and we also interviewed all of the participants. Now we’re in the analysis phase to analyse
what actually happened in the deliberation room. How did the deaf person participate as a juror with the
interpreters there? Did there seem to be any negative impact on that deliberation process. That will
hopefully be the final piece of evidence that might demonstrate that convince the judicial system that deaf
people can in face serve as jurors.

BC What were you testing? What questions were you asking?

JN That’s a good question. What we were looking at in particular is the process, the flow of the talk in the
deliberation room. The concerns that have been raised by the judiciary have been that the deliberation
process is suppose to be a natural sort of flowing conversation, where people can debate issues, and they h
have concerns if you have interpreters there it might stifle that communication, it might have a negative
impact on that flow of talk. So what we’re looking at is ok well… let’s look at that situation, let’s look
at that deliberation and how the communication happens. Whether there seems to be any miscommunications
happening and to what extent. Then we can have a better body of evidence, because so far this discussion
has been based on conjecture. No one knows what happens in a deliberation room with an interpreter because
you can’t get in there to observe it. So try creating this mock trial to replicate a case as closely as
possible, a real life case as closely as possible, means we’ve actually got some evidence then we can
analyse and present.

BC This mock trial was based on a real case. So did you know what happened in the real case? And how long it
took?

JN We did, yes. The real case took slightly longer. We had to adapt, we adapted it slightly so that we
reduced, for example the amount of evidence and witnesses that were used, because we needed to be able to
control how long the trial ran for to then estimate how long the deliberations might take. Obviously you
can imagine running a mock trial with a film crew filming everything and for research purposes we couldn’t
let it go on ad infinitum.

BC Did you find the process was slowed in any way using an interpreter, meaning in conversation? Regardless of
the content of that conversation and it’s usefulness? Did it take longer?

JN That is an interesting question that people often ask, and I think if you going to be very matter of fact
about it then yes the conversation will always take slightly longer because you’ve got that extra layer in
the conversation going through an interpreter. One of the advantages if you like for sign language
interpreters and working with deaf people is that we work simultaneously. One of our languages is silent,
so for example Bryan when you speak if there was a deaf person here present I could be interpreting
simultaneously while you’re speaking and signing to that deaf person. Where as a spoken language
interpreter, working between two spoken languages unless they have got special equipment they have to work
what we call ‘consecutively’. So you would have to pause, allow the interpreter to relay the information
and then the person responds and then you pause because you can’t talk over the top of one another. So that
takes a lot longer than sign language interpreting does.

BC What if some of the evidence, I don’t know if you’ve looked at this, is taped?

JN That was actually another issue that came up about oral evidence and we tried to include some oral
evidence in the mock trial but we weren’t able to in the end. But we did interview the various participants
and we asked them if they had felt that there’d been some kind of oral evidence like a wire tap or
something like that, would the sign language interpreters have been able to convey that? The interesting
things is the interpreters said “yes” they felt they could convey that information. What you would do is
reflect the tone of voice grammatically in a different way in sign language. So you’d use facial expression
and other components of sign language to present that information visually, if you like, so it can be
conveyed. But I think that’s something the legal profession still needs to be convinced of.

BC Well here’s a slightly a side issue here, but is it possible for a deaf lawyer to work in an Australian
court? A New South Wales court? Because we’re dealing with just New South Wales here.

JN Actually, at the moment as far as know there are no qualified practicing lawyers working in court in New
South Wales. There are people who are qualified in law but they don’t practice. There’s one, there is one
lawyer I know in Queensland actually Kathryn O’Brien who does practice in court and she uses sign language
interpreters in court. She was the first deaf person that I know of in Australia to be in that position.

BC I mean another thing that could come up is even if it’s not oral or recorded evidence, something that’s
played on a tape, a deaf person can’t hear the way somebody speaks but then I thought a deaf person can
watch the way somebody speaks. And therefore see how they are responding to a question, which can be just
as revealing if we’re looking for the credibility of a witness.

JN Absolutely, one of my co-investigators on this project is Professor Sandra Hale, who is at University of
New South Wales. She has got a lot of experience doing legal interpreting research, Spanish is the language
that she focuses on. We’re working together because of our expertise in these areas, we’ve both worked on
another project which looks at witness credibility and how jurors perceive witnesses if they present their
evidence through an interpreter. The interesting thing is that judges will invariably, when they’re giving
instructions to a jury, they will advise the jury to observe the witnesses, to watch not just listen to
what they’re saying, to watch them because often when you’re reading someone’s body language then you can
actually make an assessment of whether you think their evidence is credible or whether they’re telling the
truth. You’re right deaf people have an even more perceptive skill I think in that sense, because they
always regard the world visually. They’re always reading people’s body language anyway.

BC Nights with Bryan Crump Radio National New Zealand on air here. Talking to Professor Jemina Napier from
Heriot-Watt University in Edinburgh […] Anyway, we’re talking about Australia actually and a trial, a
‘trial’ trial! Jemina was involved in New South Wales. To see if the court system there can accommodate
deaf jurors. Are you still examining the results? Any conclusions yet that you can talk about?

JN I can’t really speak about any conclusion because the video footage is still being edited together for us.
All I can comment on are my observations of what happened and some of the thoughts that were shared with us
from the participants in the interviews that we did.

BC What did the other jurors make of what was going on? The ones that can hear?

JN Yeah, all the hearing jurors were interviewed in a focus group together. All of them actually were quite
surprised by how well everything had gone. They commented that they felt the deaf juror was very erudite,
contributed lots to the discussion, and they actually felt there was an added value actually in having a
deaf juror there and the interpreters there. They felt it helped the communication to flow because they
were conscious of making sure they were speaking clearly, so the interpreters could interpret for the deaf
juror. If anything rather than be an impediment they found it enhanced the communication process.

BC How did the deaf juror feel about the situation and the process?

JN He loved it. He was so excited to be involved. I think because up until now its never been possible for a
deaf people to serve as jurors in Australia, just to be involved, even though it was a mock trial, he said
it felt very real. He did comment that it did feel tiring, you know watching an interpreter and trying to
process everything, it’s quiet tiring on the eyes. The hearing jurors said they found it tiring too…

BC Anybody who has been on a jury and has tried, and has to deal with the difficult [information], and they’re
almost always difficult, finds it tiring. It’s not an easy thing to do.

JN Absolutely. You’re having to take on board a lot of new information. You’re having to determine what you
think about that, interpret what the outcome might be. It’s a very complex process. The deaf person said
that he felt because he had two qualified interpreters who have experience in the legal setting he felt he
had access to all the information. He didn’t feel disadvantaged in any way. He said, and we asked him, if
this ever became a reality would you be willing to serve as a juror for real? He said absolutely, 100% he
would. Yeah.

BC However, the sticking point it seems to me is the possibility of having another person in the juror’s room,
where there’s 12 people, just 12 people, are suppose to deliberate, isolated from the rest of the world not
prejudiced by anything going on outside, could be influenced by one or two interpreters. It might be too
soon for you to ne able to answer the question on whether you think that was the case.

JN Again, that’s a good question and another concern that has been raised. Interpreters do follow a code of
ethics. One really important tenet of the code of ethics is that we are to remain impartial. An interpreter
can facilitate communication but should never impose their own opinions or bring any of their own thoughts
into any conversation, regardless of if it’s in a legal context or any contexts. They’re just there to
facilitate the communication between the people who need to directly address each other.

Interpreters are trained to be impartial, to not impose themselves on a communication. You’re right we
haven’t analysed the evidence yet, so I can’t say for sure the extent to which the interpreters might have
influenced the interaction. Just by being there, I mean other research has demonstrated that just by
physically being present, of course you can’t pretend that the interpreter is invisible. They are there, so
by being there they do influence the interaction. They shouldn’t change the interaction in any way though
if you know what I mean?

BC Did the mock trial reach the same verdict as the real case?

JN That’s a good question, actually no they didn’t.

BC Now you see that I’m afraid the establishment might struggle with that, mightn’t they? They might say “well
hang on… if all things being equal they should reach the same, with the same evidence, they should reach
the same [conclusion]”, although we know juries don’t do that in real life! There’s always surprise
verdicts in all sorts of cases. Has Gaye Lyons the Queenslander, the deaf Queenslander, whose taking on the
court establishment there, taken an interest in what you’re doing?

JN Oh absolutely. She actually really wanted to be involved in the mock trial, but we felt that she has got
too much of a vested interest.

BC Yeah that’s a bit too prejudicial I think.

JN Yeah, but we are going to be doing follow up focus groups because once we’ve done the analysis we’d like to
put forward some recommendations. So once we have our preliminary recommendations we’re going to take them
to key stakeholders, so members of the deaf community, interpreters, the legal profession, the judiciary
and so on. Just to say “ok this is what we’re going to recommend, what do you think? Is it feasible?”, and
so on. Get feedback and then finalise those recommendations for the Australian Research Council who funded
the project, and also for Governments – we’re hoping it might have wider ramifications outside of
Australia, for other countries, like here in the UK where they’re also waiting to see the outcome of the
results.

We’re hoping that maybe Gaye can be involved in a focus group at a later date?

BC You must be fluent in sign [language] yourself Jemina?

JN I am yes, I use British Sign Language and also Australian Sign Language and I actually use a tiny bit of
New Zealand Sign Language as well!

BC Really we have dialects in sign?

JN We have different sign languages in every country, yes.

BC Different accents?

JN Kind of, yeah. It’s interesting in the same way that you know American, Australian, New Zealand British
English are mutually intelligible but there’s different vocabulary, so sign languages also have language
families if you like. So British, Australian and New Zealand Sign languages are related. They are more
mutually intelligible, for example than American Sign Language, which is completely different. Other sign
languages form other countries are completely different.

BC When do you get your final results through?

JN Well we’re aiming to have the final analysis ready by March…

BC March of next year?

JN Yeah. Then final recommendations by the end of 2015.

BC Jemina thanks very much for joining us, I don’t know if you can hear me but you’ve suddenly broken up.
We’ve gotta move on anyway, thanks very much Jemina.

JN You’re welcome.

BC That is Jemina Napier from Heriot University, in Scotland although she’s been working on a ‘trial’ trial in
Australia, to see whether deaf jurors in New South Wales can be incorporated into a jury system there
because at the moment they’re not allowed.