                            QBfficeof the !Zlttornep @eneral
                                         Mate of PCexae
DAN MORALES
 .ATTORNEY
       GENERAL                              May 14,1996

     The Honorable Mike Driscoll                     Qpiion No. DM-392
     I-Imis county Dii~    Attorney
     1001 Preston, Suite 634                        Re: Whether an interpreter for a deaf
     Houston, Texas 77002-1891                      juror may accompany the juror into the jury
                                                    room during deliberations (RQ-723)

     Lkar Mr. Driscdl:

             You ask this office whether an interpreter for a deaf juror may accompany the
     juror into the jury room during deliberations. You are concerned with an apparent conflict
     between article 36.22 of the Code of Criminal Procedure, which prohibits any person
     other than a juror from being in the jury room during deliberations, and sections 21.002
     and 21.009 of the Civil Practice and Remedies Code, which entitle a deaf juror to the aid
     of an interpreter and permit the interpreter to be present during deliberations. In our view,
     this congict must be resolved by permitting duly qualified interpreters who have sworn not
     to influence or ~give personal views to deliberating jurors and not to divulge jury
     deliberations to accompany deaf jurors into the jury room. This is consistent with the
     Rehabiitation Act of 1973, 29 USC. 5 794, the Americans with Disabilities Act, 42
     U.S.C. 5 12132. and the general trend of case law in this area. It is also consistent with
     recent changes by the Seventy-fourth Legislature to section 62.1041 of the Government
     Code. Furthermore, we do not believe such permission will violate the due process rights
     of a criminal defendant.

             We note that the common law was not to this et&t. “At Common Law,” as
     Justice Goodman pointy out in New York v. Gum,        478 N.Y.S.Zd 455 (Sup. Ct. 1984),
     @d, 538 N.Y.S.2d 986 (App. Div. 1989), @d, 555 N.E.2d 259 (N.Y. 1990), “‘the deaf
     were considered to be proper defectum; (incompetent on account of or for some defect).”
     Id. at 463 (footnote omitted). A statute barring deaf or blind persons from service on
     grand and petit juries withstood federal constitutional challenge as. recently as sixteen
     years ago. Ecksteein v. Kirby, 452 F. Supp. 1235 (E.D. Ark. 1978). More recently yet, a
     New York statute which forbade any person save a grand juror being in the grand jury
     room was held to prohibit a deaf woman who required an interpreter from sitting on a
     grand jury. Cooligun v. Celli, 492 N.Y.S.2d 287 @l.Y. App. Div. 1985).

             However, the recent trend in the case law, particularly in light of the Rehabilitation
     Act and the Americans with Disabilities Act, has been to open the opportunity of jury
     service to deafand blind persons. In New York v. Gumran, 555 N.E.2d 259 (N.Y. 1990),
     the New York Court of Appeals upheld the conviction of a criminal defendant whose sole
     ground of appeal was that the trial court had not permitted him to challenge a deaf juror
     for cause. In the wake of that case, a trial judge in Westchester County, New York,
TheHonorableMikeDriscoll       - Page 2     (pn-392)




refused to permit a peremptory challenge to a deafjuror based on her disability. New York
v. Green, 561 N.Y.S.2d 130 (Co. Ct. 1990). Following the Gurman case, a New York
City criminal court ruled that the Americans with Disabilities Act required “reasonable
accommodation” of a visually-impaired juror, that her visual limitations were not
automatic grounds for disqualification, and that her participation on the jury would not
deprive the defendant of due process. New York v. Caldwell, 603 N.Y.S.2d 713 (N.Y.
aim. ct. 1993).

         Cases from other jurisdictions are to the same effect. In De Long v. Bnnnbough,
703 F. Supp. 399 (W.D. Pa. 1989), the United States District Court for the Western
District of Pennsylvania held that the exclusion of a deaf person from the jury array
violated section 504 of the Rehabilitation Act, 29 U.S.C. 3 794. Similarly, in Gullowuy v.
Superior Court, 816 F. Supp. 12 (D.D.C. 1993), the superior court’s policy of excluding
all blind persons from jury duty was held to violate the Rehabilitation Act and the
Americans with Disabilities Act, 42 U.S.C. $12132, as well as the Civil Rights Act of
1871, 42 U.K. 5 1983. Most significantly for the purposes of this opinion, the United
States Court of Appeals for the Tenth Circuit, in United States v. Dempsey, 830 F.2d
1084 (10th Cir. 1987), has held that the presence of a deafjuror’s interpreter in the jury
room did not as a matter of law deny a criminal defendant his right to a fair and impartial
trial by jury.

        Texas does not have a presumption against service by deaf jurors. Rather, section
62.104 1 of the Government Code, as amended by the Seventy-fourth Legislature, states in
relevant part:

               (a) A deaf or hard of hearing person is not disqualified to serve
          as a juror solely because of hearing loss except as provided by this
          section.

               (b) A deaf or hard of hearing person is disquahied to serve as a
          juror if in the opinion of the court, his hearing loss renders him untit
          to serve as a juror in fhaf parficuhr cave.

               (c) A deaf or hard of hearing person serving as a juror shall be
          reasonably accommodated in accordance with the Americans with
          Disabilities Act. An interpreter who is assisting a deaf or hard of
          hearing person serving as a juror may accompany the juror during all
          proceedings and deliberations in the case. [Emphasis added.]

        The Civil Practice and Remedies Code provides for the employment of interpreters
in order to make jury service by deaf persons practicable. Thus, section 2 1.002(a) of the
Civil Practice and Remedies Code reads:
               In a civil case or in a deposition, a deaf person who is a party or
           witness is entitled to have the proceedings interpreted by a court-
           appointed interpreter. A deaf person who is a juror in any cure is


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TheHonorableMikeDriscoll       - Page 3    (DM-3g2)




          entitled to have the proceedings interpreted by a court-appointed
          interpreter. [Emphasis added.]

        Section 21.009 ofthe Civil Practice and Remedies Code permits the interpreter for
a deafjuror to be in the jury room:

               (a) The interpreter appointed for a juror may be present and
          assist the juror during the jury deliberation.

              @) The presence of the interpreter during jury deliberations
          does not at&t the validity of a verdict.
        You note, however, an apparent wntlict between sections 21.002(a) and 21.009
and article 36.22 of the Code of Criminal Procedure:

               No person shah be permitted to be with a jury while it is
          deliberating. No person shag be permitted to converse with a juror
          about the case ontrial except in the presence and by the permission
          of the court.

        While it might be argued that an interchange between interpreter and juror does
not constitute “wnversation,” it is apparent that the plain language of article 3.6.22 would
prevent the interpreter from being in the jury room during deliberations. Acwrdiiy,      the
wntlict must be resolved.

        The Code Construction Act, chapter 3 11 of the Government Code, requires us in
reading conflicting provisions of law to give effect to both the specifk and general
provisions if possibie, and if not, to give effect to the specitic provision as an exception.
Gov’t Code 8 311.026. Accordingly, we regard sections 21.002 and 21.009 of the Civil
Practice and Remedies Code as specific provisions prevailing over article 36.22 of the
Code of Criminal Procedure.

        Moreover, the Code Construction Act requires us to read later-enacted statutes as
prevailing over prior enactments. Gov’t Code Q 311.025. We read section 62.1041, as
amended, to prevail to the extent of wntlict over article 36.22 of the Code of Criminal
Procedure.

        As you point out, to suppose that the provisions for an interpreter apply only in
civil cases would leave the words “in any case” in section 21.002(a) without meaning.
Moreover, any such interpretation would be likely to fall afoul of the Rehabilitation Act,
29U.S.C.~794,ortheAmericanswithDisabilitiesAct,42U.S.C.            5 12132.

        Section 504 of the Rehabilitation Act of 1973,29 U.S.C. 4 794, provides:
                No otherwise qualified individual with a disability   shag,
           solely by reason of her or his disability, be excluded from the
           participation in, be denied the benefits of, or be subjected to


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The Honorable h4ike Driscoll - Page 4      (DM-3g2)




          discrimination under any program or activity receiving Federal
          financial assistance.
        In De Long v. Brumbuugh, 703 F. Supp. 399 (W.D. Pa. 1989), the court held that,
while a Pennsylvania statute which disqualiied jurors who could not speak English or
were unable to perform as jurors because of an infhmity was not unconstitutional, its
application to an otherwise qualified juror whose sole incapacity was deafness violated the
Rehabilitation Act.

        The federal district wurt rejected the claim of the state wurt judge that permitting
an interpreter to assist the potential juror might harm the jury system:
               The concern of the state court judge that the presence of an
          interpreter would violate the sanctity of the jury system and the
          secrecy of the jury’s deliberations was misplaced. The record is clear
          that qualified interpreters are bound by oath to interpret accurately
          and perform only the assigned functions during the deliberative
          process.

         The Rehabilitation Act, as the De Long court notes, applies only if a program or
activity “receives federal financial assistance.” 703 F. Supp. at 404. It would not apply if
a wurt did not receive such aid. However, even if the Rehabilitation Act did not apply to
a particular court, the Americans with Disabilities Act would.

       The Americans with Disabilities Act provides in relevant part:

           iNjo qualifted individual with a disability shall, by reason of such
           disability, be excluded from participation in or be denied the benefits
           of the .+ervices, programs, or activities of a public entity, or be
           subjected to discrimination by any such entity.

42 U.S.C. $12132.

       We note that even such a statutory command as this, however, would fail if
obeying it worked an injury to the due process rights of the criminal defendant guaranteed
by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
However, at least two courts which have considered this issue have found no such injury.

       In New York v. Guzman, 555 N.E.2d 259 (N.Y. 1990), the New York Court of
Appeals was faced with the argument that a deaf juror could not serve in a criminal case
because the need of such a juror for an interpreter would violate the privacy of the jury
room. Noting that the presence of an interpreter need not have the same effect as that of a
court official, the Court of Appeals rejected the argument:
                The signer     is a neutral figure, associated only with a fellow
           juror, and her presence should not have such an effect [as that of a
           court official]. Of course, the presence of any nonjuror creates a


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TheHonorableMikeDriscoll         - Page 5        (DM-392)




           danger that he or she will participate in the deliberations. But the
           signer and the jurors can be inst~cted      that such participation is
           improper and that any breach should be reported to the court. We
           assume that the jury can be trusted to follow those instructions as
           they are trusted to follow all others. For similar reasons, the signer
           should be sworn to keep the confidences of the jury room. This,
           together, with ethical wnstraints and the signer’s hope of future
           employment in this capacity should provide sufficient insurance that
           the signer will not make public the proceedings in the jury room.

Id.

          Since, in the Grumon case, the prospective deaf juror had been peremptorily
challenged by the defense, the court of appeals’ statement might be regarded as dicta.
However, in United States v. Dempsey, 830 F.2d 1084 (10th Cii. 1987), the presence of
the interpreter in the jury room was unquestionably a live issue. In that case, a criminal
defendant who had been cot&ted of the8 argued, among other things, that the presence
of the interpreter during deliberations “deprive[d] him of his right to a fair and impartial
trial by jury under the Sixth and Fourteenth Amendments.” Id. at 1089. Accordingly, the
Lkmpsey case squarely presents the argument that permitting an interpreter in the jury
room would violate the defendant’s due process rights.

        In analyzing the potential difficulties which might arise because of the presence of
the interpreter during deliberations, the Tenth Circuit considered these factors:

                 (1) whether the presence of an interpreter would increase the
           likeliiood of post-trial jury revelations of the jury deliberations or
           enhance,challenges to the verdict;

                (2) whether the interpreter’s presence would inhibit the jury’s
           deliberations; and
               (3) whether the interpreter might unlawfully participate in the
          jury deliberations.
Id.

         The court did not find that any of these factors required that the interpreter be kept
out of the jury room. In particular, the court was not persuaded that the presence of the
interpreter would have a chilling effect on the deliberations:

               The key question, we believe, is whether an interpreter for a deaf
          juror would be perceived by the other jurors, absent any evidence of
          inappropriate behavior, as an independent substantiality who might
          inhibit discussion. While we could speculate it might, we do not
          believe that it would. Pi, we think this television-age society has
          become so accustomed to seeing interpreters for the deaf translating


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The Honorable Mike Driscoll - Page 6         (pg-392)




           to sign political speeches, newscasts, and the like that vktually all of
           us have wme to view such interpreters more as part of the
           background than as independent participants. Second, an important
           social policy argues against automatically foreclosing members of an
           important segment of our society from jury duty simply because they
           must take an interpreter into the jury room.
Id. at 1091

         As to the question of attempts by the interpreter to participate in deliberations, the
court noted that there was no evidence of such interference in the instant case, that the
interpreter had sworn an oath to interpret faithtUy, that the judge had admonished her to
express no opinions, and that before the verdict was announced the judge asked her
whether she had abided by her oath and the judge’s admonition, While the wurt would
have preferred that such an inquiry also have been made to the jury, it held that the
safeguards in place were sufiicient to uphold the conviction.

        Such an interpreter’s oath as both the Dempsey and Gurrmm courts contemplate is
required under Texas law. Section 21.005(b) of the Civil Practice and Remedies Code
provides:

                An interpreter appointed for a juror shall       take an oath that
           the interpreter will not:

               (1) participate in any manner in the deliberations of the jury;

                (2) communicate with any member of the jury regarding the
           deliberation of the jury except a literal translation of a juror’s
           remarks made during deliberations; or

                (3) disclose any of the deliberations with any person following a
           verdict.

        In our view, based on the Guzmun and Dempsey decisions, permitting only a
properlyqualified interpreter who has sworn this oath to accompany a deaf juror into the
jury room to translate for the juror during deliberations will not work any injury to the
defendant’s due process rights. Accordingly, we find no wnstitutional bar to the
application of sections 21.002 and 21.009 in the context of a criminal trial.

        We caution that this exception must be strictly construed. Only a duly qualified
interpreter who has taken the oath set forth in section 21.005 of the Civil Practice and
Remedies Code is permitted to accompany a deaf juror into the jury room, and such an
interpreter may do no more and no other during the jury deliberations than is authorized
by his or her oath.




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TheHonorableMikeDriscoll      - Page 7    W-392)




                                  SUMMARY

               Pursuant to section 21.009 of tbe Civil Practice and Remedies
          Code and section 62.1041 of the Government Code, a duly qualified
          interpreter who has taken the oath required by section 2 1.005 of the
          Civil Practice and Remedies Code, and no other person, may
          accompany a deaf juror in a criminal case into the jury room during
          deliberations.




                                                     DAN MORALES
                                                     Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee


Prepared by James E. Tourtelott
Assistant Attorney General




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