Equal Protection and a Deaf Person’s Right to Serve as a Juror


Until the late seventies, little thought was given to the issue of deaf people serving as jurors. Conventional wisdom dictated that deaf people could not serve, regardless of whether or not they were aided by an interpreter. Even in those instances when an interpreter would aid the deaf person, the hearing world’s understanding of deafness indicated that deaf people lacked, at the very least, the language skills and ability to evaluate credibility that are essential to a juror’s function and required by the sixth amendment to guarantee a criminal defendant a fair jury at her trial. Furthermore, although an interpreter could not remedy any of these problems, an interpreter would almost certainly complicate the trial and invade the privacy of the jury room.

During this same period of time, states had decided that other groups were inappropriate for jury service as well. In particular, states had sought to exclude African-Americans and women from serving as jurors. In the first half of the 1970s, however, the Supreme Court concluded that the states could no longer rely on the conventional wisdom that had for years supported the prejudice and paternalism used to keep African-Americans and women off juries. First, in Carter v. Jury Commission of Greene County, the Court held that the fourteenth amendment’s equal protection clause prohibits states from excluding African-Americans, as well as any other competent class of people, from jury service. Then, in 1975, in response to a criminal defendant’s sixth amendment challenge, the Supreme Court held in Taylor v. Louisiana that a state could not exclude women from jury service. These cases recognized that the conventional wisdom concerning the incompetency of certain classes of people to serve as jurors was grossly misguided.

Although the time had come to recognize that the states had misperceived African-Americans and women, similar acknowledgements came more slowly for deaf people. In 1978, accompanied by her interpreter, Ms. Teresa Eckstein reported for jury service in a state court in Arkansas but was excluded because she was deaf. Three months later, in Eckstein v. Kirby, a federal district court rejected her claim that the exclusion had violated her right to equal protection. In doing so, the court relied on those arguments that have been associated with conventional wisdom. Although Ms. Eckstein’s claim was rejected, her suit became a topic for debate.

Since Ms. Eckstein’s exclusion, deaf people, aided by interpreters, have served as jurors in at least eighteen states. The most notable of these instances occurred in 1987 when Ms. Wendy Hoffman, a computer operator for the IRS, served as foreperson of a federal criminal jury in Colorado. When the defendant appealed to the Tenth Circuit in United States v. Dempsey, that court held that Ms. Hoffman’s service did not violate the defendant’s constitutional rights. Although the Tenth Circuit did not purport to overrule Eckstein, the Dempsey court explicitly rejected every concern expressed in Eckstein, thereby repudiating the conventional wisdom about deaf people and jury service.

The presence of deaf people with interpreters in the courtroom is nothing new because courts routinely use interpreters for deaf witnesses and parties to facilitate communication within the trial setting. Furthermore, the existence of deaf attorneys, both signing and oral, indicates that deaf people can have sufficient mastery of English to function in a legal setting. Thus, given the valuable service deaf people have already provided as jurors and their equally successful participation in the legal system in other contexts, one would expect that Dempsey will mark a change in the conventional wisdom about deaf jurors, just as Carter did for African-Americans and Taylor did for women.

This Article seeks to show that the views expressed in Dempsey, and similar cases, reflect the reality of deaf jury service and that the views expressed in Eckstein are not acceptable. In addition to the cases themselves, the Article draws on the experiences of deaf jurors and the knowledge of several experts in the field of deafness.

Many, though not all, of the examples of deaf jury service discussed in this Article come from Pennsylvania. Over the last two years, Pennsylvania has become a focal point in the battle for deaf jury service. The Pennsylvania experience presents examples of both hand-signing and lip-reading deaf jurors, and shows how deaf people can gain access to jury service through lawsuits, mediation, and public education. Perhaps most important, through interviews with both deaf and hearing jurors involved in the actual cases, and through videotapes of a mock trial’s deliberation, the Pennsylvania experience helps shed light on what the deaf juror can take from the trial into the deliberation room. In order to put the following discussion in context, the Pennsylvania experience will initially be reviewed.

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