Communication Access in State and Local Courts

NAD Advocacy Statement:¹
Communication Access in State and Local Courts (2008)

Introduction

The National Association of the Deaf (NAD) provides the following description of the primary barriers that people who are deaf² may face while accessing state and local court proceedings, an overview of state and local courts’ legal obligations to ensure effective communication, and recommendations for court administrators to ensure that their courtrooms are accessible to people who are deaf.

Statement of the Problem

A deaf woman, in danger of physical violence from her ex-boyfriend, went to her local courthouse seeking an Order of Protection.  When the courthouse did not provide her with an interpreter, she was unable to participate in the hearing.  As a result, she did not get crucial legal protection against her abuser.

A hard of hearing grandmother petitioned to become an intervenor in her grandson’s custody hearing.  The court refused to provide her with computer assisted real-time transcription (CART) because she was not a party to the case.  Without CART services, she was unable to understand or participate in the proceedings and the grandchild was placed in state custody.  Only after the court acceded to the grandmother’s request for intervenor status was she given CART services.  Armed with a full understanding of the proceedings, the grandmother was able to make her case and won custody of her grandson.

A deaf man went to court on a debt collection case.  When a court administrator noticed him communicating with his 12-year-old niece in sign language, the administrator required the young child to serve as the “interpreter” for her uncle’s trial.

A late-deafened father told the judge he could not hear or understand the proceedings in which he sought custody of his children.  When the judge instructed the man to wear his hearing aids, he explained that they were not particularly helpful.  The judge held the man in contempt of court and sent him to jail for a few days.

These examples are based on real-life stories that illustrate the serious consequences resulting from the lack of communication access for deaf people in the court system.  People who are deaf have the right to communication access in proceedings and activities conducted by all state and local courts.  Specifically, courts must provide and pay for appropriate auxiliary aids and services to ensure effective communication with individuals who are deaf.  Effective communication simply means that the deaf individual is able to understand and be understood in any court proceeding or program.

The ADA Requires State and Local Courts to Ensure Effective Communication

The right to effective communication between state and local government entities and people who are deaf is based on a federal law, Part A of Title II of the Americans with Disabilities Act (ADA).³  42 U.S.C. §§ 12131-12134.  The U.S. Department of Justice has issued regulations to enforce the ADA. 28 C.F.R. Part 35, 56 Fed. Reg. 35694 (July 26, 1991) (U.S. Department of Justice Final Rule:  Nondiscrimination on the Basis of Disability in State and Local Government Services).

Who is Covered?

The ADA protects individuals with a disability, including people who are deaf, who participate in court activities, including litigants, witnesses, jurors, spectators, traffic violators, conservators, victims, and attorneys.  The law applies to any type of state or local court proceeding, including civil, criminal, traffic, small claims, domestic relations, probate, bankruptcy, juvenile, and other specialized courts. It also applies to other activities conducted by court systems, including but not limited to interactions with court personnel, educational activities, and marriage ceremonies performed by court personnel or magistrates.  This law also protects deaf parents of minor children who are subject to court proceedings.  Parents of a minor who is subject to a juvenile proceeding are clearly “participants” in the proceeding even though the parents are not parties or witnesses.  They are entitled to auxiliary aids and services to ensure effective communication, such as qualified interpreter services, during the proceeding.  Furthermore, the ADA applies to “members of the public.”  Therefore, spectators who are deaf may request auxiliary aids and services from a court, as needed, for effective communication.

What Are Auxiliary Aids and Services?

Under the ADA and its regulations, state and local courts are required to provide auxiliary aids and services to ensure effective communication with deaf individuals in civil and criminal proceedings:

(a) A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.

(b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.

(2) In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.

28 C.F.R. § 35.160 (emphasis added).

The U.S. Department of Justice regulation defines the term “auxiliary aids and services” for deaf individuals to include qualified interpreters, transcription services, captioning, videotext displays, written materials, assistive listening devices and systems, or other effective methods of making aurally delivered materials accessible.  28 C.F.R. § 35.104.  For deaf individuals who use sign language, the most effective auxiliary aid or service which a court can provide is usually the service of qualified sign language interpreters, who are trained in legal procedure and terminology.

Knowledge of sign language alone does not make one a qualified interpreter.  Rather, a qualified interpreter is one “who is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.”  28 C.F.R. § 35.104.  The legal setting requires knowledge of highly specialized vocabulary.  Interpreters working in court settings should have some form of national certification augmented with formal legal interpreter training.  While not determinative, such certification and training serves as an indication of competence.  State laws and regulations may impose additional requirements for interpreters.  Family members of the person who is deaf do not meet the requirements of a “qualified” interpreter because they typically are not or cannot remain impartial, and often do not have the language skills, interpreter, or legal training to effectively and accurately interpret a court proceeding.

For deaf individuals who do not rely on sign language for communication and who have good levels of reading comprehension, the appropriate auxiliary aid or service is usually the use of transcription services, such as CART.  28 C.F.R. § 35.104.  The CART system converts spoken words instantly into text using a stenotype machine, computer, and special software.  The text appears on a computer monitor or other display, which can be read by the deaf person.  In its Technical Assistance Manual for Title II of the ADA, the U.S. Department of Justice uses “computer-assisted transcripts” as an example of an auxiliary aid or service that might be effective in a courtroom for a person who is deaf who uses speech to communicate.  ADA Title II Technical Assistance, Section II-7.1000, second Illustration 2.

For other deaf individuals who do not use sign language, an oral interpreter may be needed to facilitate lip-reading. Individuals who wear hearing aids or who have cochlear implants, the appropriate auxiliary aid might be amplified sound equipment, a courtroom with appropriate acoustic properties, and/or assistive listening systems.

The appropriate auxiliary aid or service depends on many factors.  When it becomes known or is apparent that a person cannot hear and communicate effectively in a courtroom, court officers should give primary consideration to the deaf individual’s request for auxiliary aids or services necessary to ensure effective communication as required by the ADA.

What is a Reasonable Modification?

Courts are also required by law to make “reasonable modifications” in their policies, practices and procedures, when necessary to prevent discrimination on the basis of disability.  28 C.F.R. § 35.130(b)(7).  For example, an individual relying on interpreter or CART services may require additional time to respond to a question.  Additionally, when one or both litigants are deaf, the court may need to employ a screen to protect the privacy of a conversation between the litigant and his/her attorney during a proceeding.  The screen serves to ensure that the other deaf litigant, as well as others present in the courtroom who know American Sign Language, do not “overhear” the attorney-client conversation.

Reasonable modifications may also include policy changes made by court staff.  For example, a courthouse may have only one courtroom with equipment necessary for an assistive listening device.  In this case, if an individual requests such a device to observe or participate in a proceeding, the court should make efforts to ensure that the proceeding takes place in the accessible courtroom.  As another example, court administrators should make sure that people who are deaf are able to serve on juries with the provision of appropriate auxiliary aids or services.

Can a Court Charge for Auxiliary Aids or Services?

State and local courts may not charge a person who is deaf for the use of an auxiliary aid or service.  Some state still have laws that permit judges to assess the cost of auxiliary aids or services, such as qualified interpreter services, as “court costs.”  These state laws violate the ADA and its intent.  The ADA regulation states that deaf litigants, attorneys, defendants, spectators, or any other person involved in the proceedings, cannot be charged for the auxiliary aid or service provided by a state or local court.  See 28 C.F.R. § 35.130(f).  The U.S. Department of Justice explicitly addressed the issue of court costs at 56 Fed. Reg. 35705-06 (July 21, 1991), which states:

The Department [of Justice] has already recognized that imposition of the cost of courtroom interpreter services is impermissible under section 504 [of the Rehabilitation Act of 1973.] . . ..  (45 Fed. Reg. 37630, June 3, 1980).  Accordingly, recouping the costs of interpreter services by assessing them as part of court costs would also be prohibited.

State and local courts must bear the cost of auxiliary aids or services, and may not assess these as “court costs” or other surcharges.

Putting Policy into Practice

Not only does the court need to provide auxiliary aids and services, but they need to ensure that there is a mechanism through which such auxiliary aids and services are requested and provided.  The establishment of a clear procedure that describes how and where to request auxiliary aids and services will prevent a host of problems.  For example, a deaf person may be summoned for jury duty but does not know where or how to express her need for interpreter services.  Without an interpreter, the potential juror is likely to be dismissed.  For deaf people held in custody while awaiting a hearing or trial, the custodial facility may fail to inform the court that the person is deaf and that the court may need to provide an auxiliary aid or service.

Another common barrier to communication access is a failure to provide the appropriate type of auxiliary aid or service.  As noted above, the U.S. Department of Justice regulations require courts to give primary consideration to the request of the deaf person.  Deaf people know what kind of auxiliary aid or service they require for effective communication.  Courts should not unilaterally limit the range and availability of auxiliary aids and services for deaf people and should give primary consideration to the deaf person’s request.

Further, the court’s inability to assess the quality of the auxiliary aids or services they provide to deaf people may result in ineffective communication.  For example, courts should employ interpreters with legal certification and formal legal training to ensure an accurate and effective interpretation is conveyed to the deaf person, as required by law.  Instituting procedural safeguards such as employing multiple interpreters to work in teams, and video recording deaf witnesses who offer testimony in sign language may help ensure and track the quality and accuracy of the auxiliary aid or service being provided.

Finally, like other litigants, deaf parties require the assistance of attorneys.  A similar legal obligation to provide communication access is required of private and public attorneys inside and outside of the courtroom.  When an attorney is unable to communicate effectively with his/her deaf client, the client’s ability to access the court system is hindered.  For more information about the obligations of attorneys to communicate effectively with deaf people visit https://www.nad.org/issues/justice.

Specific Recommendations

The NAD provides the following recommendations for courts to make their courthouses and court proceedings accessible to deaf people.  It is important to note that these recommendations are not exhaustive.  The determination of which auxiliary aid or service to provide in any given circumstance must be made on an individual, case-by-case basis.

• Make available appropriate auxiliary aids and services for deaf litigants, defendants, jurors, spectators, traffic violators, conservators, victims, family members, and attorneys.  Appropriate auxiliary aids and services include, but are not limited to the following: qualified sign language interpreters, oral interpreters, certified deaf interpreters,⁴ CART services, and assistive listening systems and devices.  In certain situations, such as long hearings or those with multiple deaf individuals, the court will need to hire several qualified interpreters to ensure effective communication.
• With respect to criminal matters, establish communication procedures or directives with law enforcement to ensure advance notification will be provided to courts by custodial facilities prior to a deaf party’s appearance in court.  Courts should coordinate the development, publication, and dissemination of these procedures with law enforcement to ensure that facility staff will inform the court in advance when auxiliary aids and services are needed.
• Work with appropriate advocacy organizations serving deaf people to establish standards for auxiliary aids and services to be used in court.  Sign language interpreting agencies, as well as the Registry of Interpreters for the Deaf, may be consulted to establish sign language or oral interpreter standards for the court setting.  These standards may include requiring certain national certifications for sign language interpreters, hiring full-time or part-time qualified staff interpreters or CART providers, or conducting appropriate evaluations of interpreters and CART providers to ensure competence.
• Establish a mechanism through which the court can ensure effective communication for hearings that occur on short notice, such as arraignments or regarding an Order for Protection.  The court may need to contract with more than one interpreter or interpreter service agency in order to maintain an adequate supply of readily available interpreters.
• Modify court policies, practices and procedures, when necessary to prevent discrimination on the basis of disability.  For example, a court might be required to move a trial to a smaller courtroom with better acoustics to assist a participant who uses a hearing aid.  Allow flexibility in the logistics of a proceeding when a case involves multiple deaf parties or witnesses, because counsel may need to consult privately with the deaf participant in a way that is not visible to witnesses or opponents who also know sign language.  Court personnel should develop visually accessible methods to notify deaf parties when cases are called.  Similarly, videos that introduce jurors or parties to court procedures should be captioned.
• Develop an easily accessible and widely publicized system through which deaf people, or their attorneys, can request auxiliary aids and services.  Information about obtaining auxiliary aids and services should be posted clearly throughout the court system, including, but not limited to, all notices to appear in the courthouse and on court websites.  The system should also include a feedback mechanism through which deaf people can inform the court when an auxiliary aid or service is ineffective.
• Establish mechanisms to ensure the accuracy of the record and effective communication in cases involving deaf litigants and witnesses.  For example, when a deaf witness offers testimony in American Sign Language, the court may wish to videotape the testimony to facilitate immediate review of objections to inaccurately interpreted testimony or witness questions. If an interpreter believes testimony has been voiced incorrectly, immediately “playing back” the video recording will assist in producing an accurate record.  Without visual preservation, the court relies solely on the spoken interpretation which may contain errors.

In developing policies to make court proceedings accessible to deaf people, court administrators should consult with deaf members of their communities as well as organizations that provide auxiliary aids or services, such as interpreting agencies, to establish standards for those specific auxiliary aids or services.

The right to understand and participate in court proceedings is among the most fundamental in our legal system.  Courts should take the necessary steps to ensure that their information, programs, services, proceedings, and activities are accessible to people who are deaf.

This advocacy statement was prepared by the Civil Rights Subcommittee of the Public Policy Committee, and approved April 2008 by the NAD Board of Directors.