The Right of Blind People to Serve on Juries Comes to the Court

Editor’s Note: One of the strange contradictions in American law is that we can elect and appoint judges, and we can do it without much controversy. But when it comes to performing jury service, acceptance has been more sporadic and controversial. Many of us have stories to share, but seldom has our service been the focal point of a case.

In Massachusetts a man involved in an altercation was not awarded damages in a jury trial. He has sued on the grounds that one of the jurors in his case is blind and therefore could not see and judge his injuries. We have weighed in by filing a friend of the court brief, and what we say is both thought provoking and makes for interesting reading. Enjoy!

The National Federation of the Blind, the National Federation of the Blind of Massachusetts, and the Disability Law Center respectfully submit this brief pursuant to this Court’s solicitation of amicus briefs on April 16, 2019.

STATEMENT OF INTEREST OF AMICI CURIAE

The National Federation of the Blind (“NFB”) is the nation’s oldest and largest organization of blind persons.¹ The NFB has affiliates in all 50 states, Washington, D.C., and Puerto Rico. The National Federation of the Blind of Massachusetts (“NFB of MA”) is the Massachusetts state affiliate of the NFB and has chapters in Cambridge and Greater Springfield.² The NFB and its affiliates are widely recognized by the public, Congress, executive agencies of state and federal governments, and the courts as a collective and representative voice on behalf of blind Americans and their families. The organization promotes the general welfare of the blind by assisting the blind in their efforts to integrate themselves into society on terms of equality, and by removing barriers that result in the denial of opportunity to blind persons in virtually every sphere of life, including education, employment, family and community life, transportation, and recreation.

The Disability Law Center (“DLC”), is a private nonprofit organization, and the designated protection and advocacy (“P&A”) system for people with disabilities in Massachusetts, pursuant to federal statutory authority. See e.g., 29 U.S.C. § 794e (persons with disabilities, including physical disabilities) and 29 U.S.C. § 3004 (people with disabilities in need of assistive technology). DLC’s core mission includes advocacy on civil rights and public access for people with disabilities living in the community, as well as non-discrimination in the provision of government services. On many occasions, DLC has participated in amicus briefs filed before Massachusetts appellate courts, including joining in an amicus brief discussing modifications for a witness with disabilities, In Re: McDonough, 457 Mass. 512 (2010).

Amici have particular knowledge regarding the application of federal disability discrimination laws to the courts, including the range of modifications available to assist blind jurors. The outcome of this case will likely have a profound impact on the ability of many of amici’sclients, members, and constituents to fully engage in civic life.

SUMMARY OF ARGUMENT

If trial by jury constitutes the “heart and lungs of liberty,” then courts must take extraordinary measures before excluding any juror based on disability. Rauf v. State, 145 A.3d 430, 465 n.216 (Del. 2016) (“Representative government and trial by jury are the heart and lungs of liberty.”) (quoting John Adams). See also Taylor v. Louisiana, 419 U.S. 522, 530, 538 (1975) (“[E]xcluding [from jury service] identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.”) Framing these cases as a balancing act between defendants’ rights to a fair trial and blind Americans’ rights to serve on a jury can create a false dichotomy. By its very design, jury deliberation is meant to be a collaborative process in which individuals with varying perspectives reach a fair outcome based on their collective wisdom. With assistive technology or, in many cases, without, blind people are fully capable of serving on juries without depriving criminal defendants of their fundamental right to a fair trial.

ARGUMENT

EXCLUDING BLIND INDIVIDUALS FROM JURY SERVICE UNFAIRLY DEPRIVES THEM OF CIVIC PARTICIPATION.

The privilege of jury duty provides among “the most significant opportunit[ies] to participate in the democratic process.” Powers v. Ohio, 499 U.S. 400, 407 (1991). Juries “afford ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law.” Id. (citation omitted). But for blind Americans, access to the jury has proven elusive. Though no longer categorically prohibited,³ a de facto system of exclusion persists. Nearly three decades after the passage of the Americans with Disabilities Act (“ADA”), the jury box remains frustratingly inaccessible for many blind Americans. The systemic exclusion of these potential jurors is rooted in outdated and stigmatizing notions disregarding their ability to meaningfully contribute to the American justice system.

Anecdotal evidence from blind prospective jurors in Massachusetts illuminates the problem. One NFB member reported that she was routinely turned away from jury service by court employees who told her that a blind juror would never be selected. Once, a court official patted her on the head before sending her on her way. Another NFB member described how court officials, upon learning of her blindness, told her that she likely would not be selected for jury service and encouraged her to simply disqualify herself if summoned. A third NFB member recalled being chosen for jury duty but subsequently removed and replaced by an alternate juror prior to closing arguments because she was blind—even though she had paid close attention through the trial while several of her co-jurors had fallen asleep. Other blind Massachusetts residents revealed that they simply abstain from the jury selection process altogether, not because they doubt their own ability to serve, but because they know from personal experience that they would not be seriously considered.

Outside of Massachusetts, the story is the same. In an essay published in NFB’s periodical, the Braille Monitor, Maryland-based NFB member Daniel Frye shared his own disappointing jury duty experience. Daniel B. Frye, Juror 458, 52 Braille Monitor 7 (July 2009), https://archive.nfb.org/Images/nfb/Publications/bm/bm09/bm0907/bm090711.htm. After receiving his jury summons in March 2009, Mr. Frye arrived at the courthouse a half-hour early and eagerly waited for his number to be called. Id. When the time came, he approached the front desk. Id. The court employee “paused uncomfortably” before conferring in whispered tones with a colleague. Id. She informed him that because the circuit court courtrooms were in two different buildings, to ensure his own safety, he would not be called for a jury pool in the other building. Id. Mr. Frye politely responded that he had no concerns about crossing the street and that he did not want to be treated differently from any other juror. Id. Within a half-hour, every other member of Mr. Frye’s jury group was instructed to report to the other courtroom; he was told to stay behind. Id.

At the heart of these stories is an understanding that jury service is more than civic duty. It is recognition as a responsible member of the community, worthy of being entrusted with questions of guilt and innocence, life and death. To be systematically denied jury service because of blindness denies that recognition, fosters a sense of otherness, and suggests that the blind fall outside the “cross section of [the] community.” See Commonwealth v. Ricard, 355 Mass. 509, 512 (1969). That stigmatizing sense of exclusion is precisely the social ill that the ADA sought to combat. Nearly thirty years later, this Court should act to ensure that it is finally remedied.  

EXCLUDING BLIND INDIVIDUALS DEPRIVES THE JURY OF PERSPECTIVES AND LIFE EXPERIENCES THAT INFORM AND ENHANCE DELIBERATIONS.

Excluding blind people from participation in jury service also carries significant consequences for the administration of justice. The Sixth Amendment to the U.S. Constitution provides criminal defendants “the opportunity to have the jury drawn from venues representative of the community” that do not “systematically exclude distinctive groups.” Taylor, 419 U.S. at 530, 538. Exclusion of “any large and identifiable segment of the community . . . from jury service . . . remove[s] from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.” Commonwealth v. Arriaga, 438 Mass. 556, 562 (2003) (citation omitted). A group’s exclusion “deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” Id. Excluding blind individuals deprives both the defendant and the members of the jury of unique perspectives and life experiences that enhance deliberations and ensure a just verdict is reached.
By its very design, jury deliberation is meant to be a collaborative process in which individuals with varying perspectives, strengths, and challenges reach a fair outcome based on their collective wisdom. Blind jurors bring into the jury room perspectives and abilities not shared by most sighted jurors. Their participation may benefit the jury as a whole, sparking discussion and encouraging other jurors to take a closer look at the subtleties of the evidence. They may ask their co-jurors targeted, specific questions to better understand and help draw a mental picture of visual evidence. While sighted jurors may draw inaccurate and unfair conclusions from the dress and deportment of a defendant or his associates, the blind juror may make no such inferences. See D. Nolan Kaiser, Juries, Blindness and Juror Function, 60 Chi. Kent L. Rev. 191, 199 (1984).

Though blind individuals are not bestowed with superior hearing, living without sight may sharpen their listening skills and produce a more nuanced sense of hearing. See Kim Eckart-Washington, Brain Differences in Blind People May Sharpen Hearing, ScienceDaily (Apr. 22, 2019), https://www.sciencedaily.com/releases/2019/04/190422151020.htm.(⁴) As one New York court noted, “a blind person’s perceptions as to voice intonation may be supplemented by the other jurors’ perceptions of body movements and together, a determination of veracity may be made.” Jones v. N.Y.C. Transit Auth., 483 N.Y.S.2d 623, 624 (N.Y. Civil Ct. 1984).

FEDERAL AND STATE DISCRIMINATION LAW REQUIRES THAT COURTS INCLUDE BLIND JURORS.

The Supreme Court of the United States has ruled that states have a duty under Title II of the ADA to ensure that individuals with disabilities have access to the courts. See Tennessee v. Lane, 541 U.S. 509, 532 (2004). While state courts are not obligated to “employ any and all means to make judicial services accessible to persons with disabilities,” they must “take reasonable measures to remove . . . barriers to accessibility” and provide “all individuals a meaningful opportunity to be heard in its courts.”⁵ Id. at 531-32. See also 28 C.F.R. § 35.130(b)(7)(i); Galloway, 816 F. Supp. at 17 (noting that a “policy of categorical exclusion of all blind persons from Superior Court juries violates the ADA”); People v. Caldwell, 603 N.Y.S.2d 713, 714 (N.Y. Crim. Ct. 1993) (finding that the ADA prevents removal of a potential juror simply because of a disability).

In addition to federal law, Massachusetts law specifically requires the inclusion of blind jurors. The law states that “[a]ll persons shall have equal opportunity to be considered for juror service” and that “[p]hysically handicapped persons shall serve except where the court finds such service is not feasible.” Mass. Gen. Laws ch. 234a, § 3 (2019). See also Mass. Const. amends., art. 114 (providing that “[n]o otherwise qualified handicapped individual shall, solely by reason of his [or her] handicap, be excluded from the participation in, denied the benefits of, or be subject to discrimination under any program or activity with the commonwealth”); In re McDonough, 457 Mass. 512, 514 (2010) (applying art. 114 to the state court system to find that individuals with disabilities have a constitutional right to participate as witnesses in judicial proceedings).

Courts have consistently recognized the ability of blind judges to serve not only on state⁶ and federal⁷ appellate courts, but also on trial courts⁸—including over bench trials with visual evidence. See, e.g., People v. Hayes, 923 P.2d 221 (Colo. App. 1995) (upholding ruling of blind judge, with the assistance of a professional describer, in a hearing that required evaluation of video evidence). At least one court has found that “[n]o distinction can be drawn between a blind judge's ability to make factual findings and the abilities of a blind juror.” See Galloway, 816 F. Supp. at 17 (discussing the tenure of Judge David Norman, a blind judge on the Superior Court of the District of Columbia).

BLIND JURORS MAY SERVE EFFECTIVELY WITHOUT COMPROMISING THE RIGHTS OF CRIMINAL DEFENDANTS.

Although visual impairment was once a basis for per se disqualification from jury service, by the late 20th century, courts and legislatures began to reconsider blanket exclusions in favor of a case-by-case analysis that weighed the Sixth Amendment rights of criminal defendants against the public interest in equal access to the jury. See, e.g., Bewley v. Oklahoma, 695 P.2d 1357, 1359 (Okla. Crim. 1985) (holding that blindness did not automatically disqualify a juror under state statutes). But framing these cases as a balancing act between defendants’ rights to a fair trial and blind Americans’ rights to serve on a jury often creates a false dichotomy. While protecting a defendant’s constitutional rights is essential, blind jurors have served and will continue to serve on juries without depriving the defendant of any of her fundamental rights and protections to a fair trial. See Nancy Lawler Dickhute, Jury Duty for the Blind in the Time of Reasonable Accommodations: The ADA's Interface with a Litigant's Right to a Fair Trial, 32 Creighton L. Rev. 849, 857 (1999) (concluding that “while at first blush the seating of a blind juror might appear to compromise the guarantees of an impartial, competent jury, upon closer examination these guarantees are neither sacrificed nor compromised”).

In Commonwealth v. Susi, the Supreme Judicial Court of Massachusetts established that blind jurors begin with a presumption of competency.

Decided five years prior to the passage of the ADA and just three years after the state legislature explicitly allowed individuals with disabilities to serve on juries, Commonwealth v. Susi found that in the context of a blind juror, Massachusetts law “creat[es] a presumption of competency which must then be evaluated on a case-by-case basis.” 394 Mass. 784, 788 (1985). That presumption was overcome in Susi, the Court wrote, because “[t]he issue of identification was the predominant issue at trial.” Id. at 786. The jury was asked to compare the physical features of the defendant with another man, as well as the police’s composite drawings and other photographs. Id. at 785. In reversing the conviction, the Court held that a mere description of the physical evidence would have failed to “convey adequately the subtleties which would be apparent on a visual comparison.” Id. at 788.

While amici believe the outcome of Susi reflects a limited and outdated understanding of the capabilities of blind people, its underlying principle—that blind jurors possess a “presumption of competency” that can be overcome on a case-by-case basis—remains workable so long as the bar to overcome the presumption is set high. The case-by-case approach demands “the articulation of some specific way in which the blind juror’s blindness would thwart justice.” Kaiserat 197. With advancements in both technology and the public’s understanding of the capabilities of blind individuals, the correct presumption is that blind jurors can access and interpret visual evidence and meaningfully contribute to jury deliberations. Rather than trying to determine why a blind juror may not be competent, the court should instead be asking what modifications, if any, will be needed to ensure the blind juror’s ability to participate fully.

BLIND JURORS CAN COMPETENTLY ASSESS PHYSICAL EVIDENCE AND MAKE CREDIBILITY DETERMINATIONS.

In the 34 years since Susi was decided, there have been dramatic advancements in both technology and the general public’s understanding of the capabilities of blind Americans. Given these advancements, blind jurors are presumptively capable of performing two key responsibilities of jurors: assessing physical evidence and determining a witness’ veracity or credibility.⁹

Technology has revolutionized access for blind individuals.

Since Susi, technological advancements have transformed blind individuals’ access to information. Assistive technologies have proliferated, and today, blind individuals have a variety of options for receiving written communication. Most blind individuals access information electronically, using mobile devices and/or personal computers and screen access software, which vocalize textual information or display that information on a user-provided refreshable braille display.¹⁰ Others use large print, audio, magnification devices, scanners, or human readers.¹¹ Some individuals take notes using a BrailleNote, a portable electronic notetaking device. These assistive technologies are widely available, often inexpensive, and already used and possessed by many blind individuals. Apple¹² and Microsoft Windows¹³ operating systems include free built-in assistive technology.

Blind jurors are presumptively capable of assessing physical evidence.

This Court should hold that the presumption is that blind jurors can competently assess visual evidence, in some cases with modifications to ensure effective communication of the evidence.

First, the introduction of visual evidence, such as photographs, videos, mechanical objects, diagrams and handwriting exhibits, requires a testimonial base. Thus, it is almost always accompanied by supplemental evidence in spoken or written form and interpretation by a lay or expert witness. As one blind juror noted, “[t]here is ample describing of the evidence and the particular aspect of the evidence the lawyers want to get across to the jurors . . . They don't just say here's a picture—figure it out for yourself.” M. J. Crehan, Seating the Blind Juror, 81 Judicature 104, 107–08 (Nov./Dec. 1997). See also Caldwell, 603 N.Y.S.2d at 714 (holding that seating a blind juror did not deny the defendant due process despite the presence of photographic evidence, where the court described the photographs as they were introduced and oral testimony was presented on the same issues).

The present case offers a useful example: While the blind juror at the center of this appeal was unable to view the two photographs of the victim’s battered face, he could consider the victim’s testimony about his internal permanent impairment and disfigured face, as depicted in the photographs, Tr. at 116, 119, 121, 122, and described by the medical treatment he later received, Tr. at 122, as well as the medical records from Norwood Hospital and Massachusetts General Hospital, Tr. at 149. The totality of the evidence was sufficient for the blind juror to make a finding of disfigurement and loss of function.

In addition to testimony provided about the visual evidence, the blind individual may choose to use a trained human reader or describer.¹⁴ The use of a qualified reader does not implicate the defendant’s Sixth Amendment rights. Readers function like interpreters, which courts have consistently allowed. See United States v. Dempsey, 830 F.2d 1084, 1087-88 (10th Cir. 1987); see also People v. Guzman, 556 555 N.E.2d 259, 263 (N.Y. 1990) (noting that interpreters are “neutral figures” and that the court “assume[s] that the jury can be trusted to follow . . . instructions” regarding the expected participation of such individuals).

Trained describers serve a similar role, providing a narration to convey all the relevant characteristics of an object to the blind juror.¹⁵ When the proceeding is in open court, the accuracy of description can be monitored easily and addressed by the parties. See Hayes, 923 P.2d at 225-26.

Such a process was upheld in People v. Hayes, where a blind judge presided over a hearing that included video evidence. Id. at 226-27. In Hayes, the judge had a describer prepare a written report of the videotape and describe the contents of the video while it played during the hearing. Id. at 225. The defendant had the opportunity to object or add to the narration and to cross-examine the narrator. Id. Although the defendant claimed on appeal that the narration could not serve as a substitute for viewing relevant evidence, the court disagreed, finding it an “appropriate accommodation” that “ensured defendant of a fair hearing and of a decision based on a rational evaluation of the actual evidence presented.” Id. at 226–27.

Blind jurors are presumptively capable of making credibility determinations.

The notion that a blind juror is unable to assess a witness’s credibility is without merit.¹⁶ In evaluating testimony, blind jurors can concentrate on verbal testimony while avoiding distractions like a witness’s facial expressions, dress, appearance, and body movements.Crehan at 106. Even visual cues indicating deception, like nervous tics, darting glances and uneasy shifting, are nearly always accompanied by a corresponding audible cue such as throat-clearing, swallowing, voice quavering, or inaudibility. Kaiser at 200. As one blind juror described, “I’ve found that I’ve been pretty accurate—probably as, if not more accurate, than people who make eye contact, because people have gotten real good about fooling people on the visual level, but people often don't think about how they sound when they speak.” Crehan at 106. Another blind juror, who served on a murder trial, observed that “[p]eople can control face muscles . . . Nobody thinks about the nuances of the human voice.” Id.

THIS COURT SHOULD PROVIDE ADDITIONAL GUIDANCE ON HOW TRIAL COURTS CAN ACCOMMODATE BLIND JURORS.

This Court has the opportunity to provide guidance to ensure that trial courts recognize the right of blind jurors to an equal opportunity to participate in jury service. Because trial courts may not appreciate their obligations under Title II of the ADA, guidance is necessary.¹⁷ See Opinion, An Opportunity to Provide Guidance on Disabled Jurors, Mass. Law. Wkly., June 17, 2019, at 38.

When a blind juror is present, the trial judge should be vigilant in monitoring counsel and witnesses to ensure they do not rely on gestures and other non-verbal cues without accompanying verbal explanation. When eliciting oral testimony, counsel should request accurate and complete descriptions of exhibits and clarifications for the record as needed, so that the trial content is accessible to the blind juror. See Dickhute at 872. For key evidence, the trial court should make readers and describers available to ensure unbiased transmission of information to the blind juror. Many states have developed court rules or policies addressing jurors and others with disabilities. See, e.g., Oregon Uniform Trial Court Rules 7.060; Maryland Rules of Procedure 1-332; California Rules of Court 1.100.¹⁸

Amici suggest the following guidelines for ensuring that blind jurors receive effective communication and an equal opportunity to serve:

Improving Information Available to the Public.

A. Provide information on the court’s website related to modifications available to ensure effective communication with blind jurors.¹⁹

B. Provide all publicly available printed information concerning court policies, practices, and procedures in electronic format and large print. Ensure that all information provided in electronic format, including on the court’s website, is fully accessible using screen reading software.²⁰

C. Provide basic training to court personnel on common issues related to making trial materials accessible to blind jurors, including use of screen reading software,²¹ and the availability of professional readers and describers.

Summons and Other Court Communications

A. Provide to jurors the name, office address, telephone number, and email address of the designated ADA coordinator in the summons letter and all related communication.

B. Develop written procedures for prospective jurors with disabilities on how to request and obtain modifications to court policies, practices, and procedures before the hearing date. These should include information on any assistive technology provided by the court.²²

C. Eliminate from forms any question that leads to an automatic self-exemption from jury service for people with disabilities.

Day of Court

A. Ensure that all information available at kiosks or posted signage in the courthouse is available in an audible format.

B. Assure that the Jury Questionnaire or any other forms completed by members of the jury pool before or on the day of jury services are accessible.

C. Adopt and publish a procedure providing for a confidential interview of all prospective jurors prior to jury selection, to determine if the juror anticipates a need for a modification should they be selected to serve on a panel.

Analyzing the Case.

A. When the judge learns that a member of the jury pool is blind, the judge should work with trial counsel and then with the potential juror at sidebar to identify:

1. the extent to which the case hinges upon the interpretation of visual evidence;
2. how the juror can access that evidence, with or without modifications (e.g., through use of screen reading software, large font printing, readers, describers); and
3. the ability of the court and the parties to provide those modifications.

Deciding Upon Modifications and Trial Procedures

A. Evaluate the requested modification, and unless it is an undue burden or would fundamentally alter the proceeding, make provisions in the event the potential juror is chosen to serve.

B. In considering requested modifications, give preference to the accessible format requested by the juror (e.g., braille, large print, reader, describer, accessible electronic document).

C. The court should not grant hardship waivers in lieu of providing a modification.

D. If the requested modification is not timely available, reschedule the prospective juror's service for another day when the modification can be arranged.

E. The court should not modify jury service for persons with disabilities by shortening the time or terms of service.

Finalizing the Composition of the Jury Pool

A. When considering a challenge for cause, never grant a challenge against a blind person for cause without first fully considering the person's abilities in relation to the nature of the case and evidence to be presented, making a complete record of the voir dire examination, and putting the reasons for the ruling on the record.

B. Consider whether jurors with disabilities are being stricken using peremptory challenges, without justification.

During Trial

A. Offer a change of seating where doing so would help a juror who is blind or visually impaired enter and exit the jury box or to see shapes or faces better.

B. Remind witnesses to testify in detail when describing diagrams, photographs, documents, and visual aids.

C. Allow the blind juror to touch exhibits during trial and to trace lines on diagrams and sketches.

D. Instruct the jury that it is permissible for sighted jurors to discuss visual evidence with and read documents to the blind juror in deliberations.

E. Through a trained describer, provide the blind juror a detailed description of any visual evidence sighted jurors are viewing.

During Deliberations

A. Allow a reader to assist the blind juror in accessing written documents admitted in evidence that have not been otherwise made accessible.

B. Allow the blind juror, or any juror for that matter, to seek clarification on diagrams, sketches, photographs, and visual aids.

CONCLUSION

Blind Massachusetts citizens can competently and meaningfully contribute to juries and should be given the opportunity to do so. In the 34 years since this Court decided Susi, we have seen the passage of the ADA and a technological revolution. This Court now should state unequivocally that the use of visual evidence at trial does not by itself undermine blind jurors’ presumption of competency. Such a holding would align Massachusetts courts with federal law, state law, and relevant case law recognizing the too-often ignored capabilities of blind Americans.