We should all be able to agree if you are charged with a crime, you should get a fair trial. An obvious prerequisite to a fair trial is that the jurors at least understand everything going on in the courtroom. That is, a juror should, at a minimum, be able to comprehend all evidence presented and understand the rules (i.e. the jury instructions) provided by the judge.
What if a juror says to the judge, “I can’t read English” Upon further questioning, you discover the juror can speak (relatively) fluent English, but can’t read or write even one word. When this happened during one of my trials, my first thought was, let’s just get an interpreter. However, this juror spoke an eastern European language for which there was little chance of finding an interpreter on short notice. What should the court do in this situation?
I submit that reasonable minds can disagree on the answer to this question. My stated position, based on his inability to read or write any English, was that he could not be a fair and impartial juror for my client (moreover, I had a feeling this juror, who grew up in a former Soviet bloc country, may not value the presumption of innocence.) I argued that, absent an interpreter, being a juror required the ability to read and write (i.e. jury instructions.) Moreover, how could we ever qualify how much English he really knew? So I motioned to strike him for cause.
The prosecutor took no position. The judge denied the motion. In all fairness, the judge had a reason. He believed we could accommodate the juror by having his judicial assistant read this juror the jury instructions. However, my response was: (1) We can’t tell how much English he really knows without speaking his language; (2) in Arizona, jurors can write down questions to ask a witness. It seemed unlikely that he would get the clerk and have her ask the question; and (3) sometimes there are words that have no translation from English to another language. Not all languages have an adequate vocabulary to translate the concept of “beyond reasonable doubt.” The judge was not persuaded. He denied my motion. My tactic was to now turn towards the prosecutor. I discussed the possible appellate issues, and we agreed he would strike the juror to avoid the issue.
So, after the trial, I did some research, talked with my appellate attorney guru friend and concluded that under Arizona law, the judge may have been in his discretion to keep the juror. It would be a close call. Arizona law would most likely require me to show actual “prejudice” by keeping the juror on the panel. Under Arizona law, this would be almost impossible.
Consequently, if you thought the ability to read was a prerequisite for jury service, then think again. Not only is it a real possibility that your juror may not be able to read, it is also legal.
The Arizona Supreme Court issued two decisions this week providing guidance as to scope of