6.10 III. Criminal Prosecution

• Library: Disability Law and Practice, Vol. 3 (NY) 2017

III. CRIMINAL PROSECUTION

The need for clear communication is nowhere more critical than when liberty is at stake, and few rights are more firmly established than those to the effective assistance of counsel and the opportunity to confront accusers. New York, like most other states,⁶⁶ has a statute that grants a deaf defendant the right to a qualified interpreter. However, a statutory right is often insufficient to protect the deaf defendant’s fundamental interests.

Under § 390 of the Judiciary Law, a criminal defendant who is deaf has a statutory right to a “qualified interpreter who is certified by a recognized national or New York state credentialing authority . . . to interpret the proceeding to, and the testimony of, such deaf person.”⁶⁷ However, § 390 also states that if providing a certified interpreter “would cause unreasonable delay in court proceedings, the court [can appoint someone who is] otherwise qualified.”

The determination as to whether an interpreter is necessary ‘“lies within the sound discretion of the trial court, which is in the best position to make the fact sensitive inquires necessary to determine whether there exists a language barrier such that the failure to appoint an interpreter will deprive the defendant of his constitutional rights.”’⁶⁸

As noted previously, there is no credentialing body for interpreters in New York and only a relatively small number of RID-certified interpreters in the state. Since Jud. Law § 390 authorizes the use of uncertified interpreters without defining what constitutes an “unreasonable delay” (or, more importantly, how a trial judge is to determine who is “otherwise qualified”), the rights of deaf defendants can be compromised.

The problem of unqualified interpreters in New York’s courts was the subject of an ADA case settled in 1995, discussed at II.B.2., supra.⁶⁹ The breadth of the remedial steps required by the settlement⁷⁰ demonstrates the severity of the problem. Similarly, the problem in New York is illustrated by a case in which a criminal indictment was dismissed because an unqualified interpreter was provided to two grand jury witnesses who were deaf.⁷¹

Section 390 of the Jud. Law also fails to address the fact that the deaf vary enormously in terms of expressive abilities (i.e., sign language skills, speech clarity, writing skills and so on) and receptive skills (residual hearing, lip reading skills, reading ability and so on). Many people, including judges and attorneys, are unaware of these differences and make judgments about deaf persons’ abilities without any basis. For example, in one case in Arizona an appellate court noted that a deaf defendant was “fairly adept at reading lips” in its decision upholding the trial court’s acceptance of a deaf defendant’s guilty plea.⁷² There was no indication as to how the court made this determination or whether it was aware of the research on the limited usefulness of lip reading.

For deaf defendants who lack sign language skills, computer programs that generate instantaneous transcription may provide accessibility. In Adams v. State,⁷³ a deaf man who had been convicted without receiving any communication assistance was exonerated in a retrial where he was provided with computer-assisted transcription (CAT). His attorney credited the acquittal to his client’s ability to actively participate in the cross-examination of the victim.⁷⁴ However, the use of CAT requires good literacy skills, and the mean reading comprehension score of deaf 18-year-olds is the third-grade level.⁷⁵ In one case, a deaf defendant provided with simultaneous transcription was too embarrassed to admit his reading ability was very low.⁷⁶

There are also problems stemming from cultural issues, which the statutory right fails to address. For instance, a deaf person may nod her head to indicate that she is watching a speaker but not to indicate agreement with or understanding of what is being said. In one case, an appellate court noted that the arraignment judge ‘“looked the defendant in the face’ as he spoke to him and wrote notes to him. The defendant ‘nodded’ when asked if he understood.”⁷⁷

As to the scope of the right, Jud. Law § 390 provides that an...