For most deaf people, interactions with the hearing community in the absence of interpretation or technological assistance consist of communications that are, at most, only partly comprehensible. Criminal proceedings, with the defendant's liberty interest directly at stake, are occasions in which the need for deaf people to have a full understanding of what is said and done around them is most urgent. Ironically, the legal “right to interpretation” has not been clearly defined in either statutory or case law. Although the federal and state constitutions do not provide a separate or lesser set of rights for deaf defendants, their situation remains unique. The complete reliance on spoken and written English in the criminal justice process systematically excludes full participation of almost all deaf people. This factor, compounded by the general ignorance about deafness among hearing people, places deaf defendants at a serious disadvantage. The federal government and most state legislatures recognize the injustice that results from a defendant's inability to understand the proceedings that may result in punishment. These bodies have passed legislation allowing or requiring interpretation for defendants who cannot hear or understand English. This Comment argues, however, that the right to interpretation at criminal proceedings is already embodied in protections afforded all defendants through the Sixth and Fourteenth Amendments of the United States Constitution. The rights to effective assistance of counsel, to confront witnesses against the defense, to be present at trial and assist in the defense, and to understand the nature and cause of the charges, impose a duty on the government to provide a defendant the means to understand the proceedings. Although many courts have referred to the right to interpretation as having a basis in the Constitution, they nonetheless fail to treat it as such. By expecting defendants to secure trial rights for themselves and by granting the trial court judges broad discretion in ensuring these rights, appellate courts have allowed deaf defendants' rights to fall below the constitutionally guaranteed minimum. The increasing amount of legislation addressing the need for interpretation has led many modern courts to focus on the statutory, rather than the constitutional, requirements of the right to interpretation. This approach usually results in less protection for deaf defendants. These courts analyze the need for interpretation as a “special right” for deaf people rather than viewing the statutes as legislated procedures to ensure and protect, but not supplant, the constitutional protection. The distinction between statutory and constitutional rights is significant. For example, habeas corpus relief for state court prisoners, requirements for waiver of a constitutional right, and the standard of review in appellate courts all depend on the characterization of the right as constitutional or statutory. The need of deaf defendants for interpretation provides an unfortunate example of how the failure to recognize the constitutional basis of the right to interpretation has resulted in disparate treatment of defendants in the courts. A recent Maine Supreme Judicial Court case, State v. Green, reveals many of the problems deaf defendants face in trial and appellate courts.
Deirdre M. Smith,
Confronting Silence: The Constitution, Deaf Criminal Defendants, and the Right to Interpretation During Trial,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol46/iss1/7