A consideration of the eligibility of blind or deaf people for jury service in Ireland

• Date: 01 January 2011

A Consideration of the Eligibility of Blind

or Deaf People for Jury Service in Ireland

CI ARA BOYL E*

Introduction

For some, reporting for jury duty is a chore to be avoided, while, for others,

it is an opportunity to participate in the democratic process.1Jury service is

a right and obligation of citizenship.2For many blind or deaf citizens,

reporting for jury duty is a noble aspiration, which may never materialise

due in large part to their disability. This article aims to demonstrate that

people who are profoundly deaf, blind or have significant hearing or sight

impairments should not be precluded from jury duty on the grounds of their

disability. A focus is placed on the current ambiguity surrounding the

eligibility of blind or deaf persons for jury service in Ireland, examining why

legislative reform of this area is necessary.

Just as the right to vote was once restricted, so too is jury duty. The jury

is to be “representative of the community as a whole”. However, how can

this be so if such an important segment of society is restricted based on

discriminatory misconceptions? The blanket exclusion of a very real segment

of our community contravenes the very idea of trial by jury. The criminal

justice system places an onus on individuals with disabilities to assert their

rights and demonstrate a capacity to participate, in a way not experienced

by people who do not have disabilities.3In this day and age, with an

increasing awareness of disability issues, blind or deaf persons ought to be

provided with the same level of rights, obligations and protections as others

citizens. The blanket exclusion of blind or deaf people from jury service

denies their citizenship based on an irrational prejudice, stereotyping and

* B.A., LL.B., LL.M. Part of this Article was submitted as my Thesis in partial fulfilment

of the requirements for the degree of L L.M in Publ ic Law, N UI Galway 2 009—I

would li ke to thank my supervisor, Mr Conor Hanly for the knowledge, opinions,

suggestions and openn ess he expressed through out the course of this thesis, I am

indebted to. I would like also to thank Mr Michael Farrell, Senior Solicitor with FLAC

for keeping me informed o f developments in the Joan Clarke Case as well as for

updating me on any progress made with regard people who are deaf serving on juries.

1Dickhute, “Jury Duty for the Blind in the Time of Reasonable Accommodations: The

ADA’s Interface,” (1999) 32 Creighton Law Review, p.849

2A Submission by the Disability Council of New South Wales, “LRC Discussion Paper

No. 46: Blind or Deaf Jurors,” (2004) available at www.disabilitycouncil.nsw.gov.au/

archive/04/deafblindjurors.doc, p.2

3Ibid, p.6

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ignorance and can be viewed as an abuse of their human rights.4The

exclusion of these citizens from jury service is based on misguided

perceptions about their capability and culture. Such exclusion can be

compared to slavery, which was once an accepted phenomenon as was the

exclusion of women from voting, areas which people never envisaged

changing. However, our frame of reference can shift, and when it does, a

society often forgets that what is the norm today was believed impossible by

some only yesterday.5It is time that our frame of reference shifts with regard

to the competence of blind or deaf people to serve as jurors. Prohibiting

blind or deaf people from jury service is a discriminatory practice which

needs amendment. The criminal justice system needs to provide accom -

modation to allow blind or deaf jurors and enhance the representative

nature of juries. A blanket exclusion of blind or deaf people from jury duty

precludes any opportunity for individual determination of the ability of the

individual affected to discharge the duties of a juror.6It may be that, in

individual cases, it is inappropriate to empanel a blind or deaf juror;

however a blanket prohibition is excessive and unnecessary.7Ineligibility

should depend on the individual circumstances of each trial.

The majority of people with disabilities would welcome the opportunity

to serve as jurors and carry out their civic responsibility.8It is ironic that

when most people seek to avoid jury duty and court authorities regularly

complain about the difficulty in empanelling sufficient jurors, one group of

people who are willing and able to perform the vital service are being turned

away because of outmoded and stereotypical attitudes.9

“The best we can do is to try to find twelve citizens, imperfect as they are,

to listen, observe, consider, discuss, and reach the best verdict, the fairest

verdict, they know how, given their imperfections.”10

Excluding blind or deaf people from jury panels is essentially depriving

the jury system of a valuable perspective. As flawed humans, the best

approximate justice we can get is by having a broad cross-section of human

4Vision A ustralia, “Response to a Discussion Paper of the New South Wales Law

Reform Commission on the Participation of People who are Blind or Vision Impaired

on Juries,” (2004) available at http://www.visionaustralia.org/ per cent5 Cinfo.aspx?

page=985

5Mullen, “The Americans with D isabilities Act: An Intr oduction for Lawyers and

Judges,” (1994) 29 Land and Water Law Review 175, p.213

6Law Reform Commission of New South Wales, “Report 114: Blind or Deaf Jurors,”

(2006) available at http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_

r114toc, para.1.19

7Ibid. para.4.1

8National Disab ility Authority, “Submission to Co urts Service,” (2002) ava ilable at

www.nda.ie, p.16

9FLAC, “Cha llenge to Jury Bias: FLAC takes a case on dis crimination against deaf

jurors,” (2008) 18(2) Flac News, p.2

10 People v Guzman 125 Mi sc. 2d 457, 466; 478 N.Y.S. 2d 455, 462 (N.Y. Sup.1984)

(per Goodman J)

2CIA RA BO YLE

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experience represented in the jury room.11 This article thus argues that

Ireland is in need of statute which explicitly sets out the eligibility of blind

or deaf persons for jury service and imposes a responsibility on the courts

service to provide such jurors with reasonable accommodations to ensure

they can effectively serve. In an era of disability rights advocacy, it is

important that persons with disabilities are included in jury service. Society

has to promote the social inclusion of blind or deaf citizens. Changes are

occurring regularly which are enlightening our knowledge of the capabilities

of blind or deaf persons. One such example is that the anachronistic

misperception that the deaf are intellectually slower has been repudiated

scientifically and the terms “deaf and dumb” or “deaf and mute” are as

inflammatory to a deaf person as “nigger” is to an African American.12

Historically, deaf or blind people, sub groups of persons with disabilities,

have been viewed as a separate and distinct group, inferior to the rest of

society. People tend to rely on their embedded cultural default and behave

irrationally by excluding blind or deaf persons from jury service based on

the misunderstanding that they are incapable of carrying out the duties of

a juror competently.

Irish Position

This article shall focus on the law in Ireland with regard blind or deaf people

serving as jurors. The Juries Act1976, which currently governs qualification

and liability for service as a juror and selection and service of jurors, was the

Irish legislature’s response to the case of De Búrca v AG.13 In that case, the

Supreme Court held that the provisions of the Juries Act 1927, whereby

citizens who were not ratepayers were excluded and women were

conditionally excluded from the list of jurors, were inconsistent with the

provisions of the Constitution. Article 38.5 of the Constitution provides that

“[n]o persons shall be tried on any criminal charge without a jury”. Henchy

J considered this guarantee in De Búrca and provided that the primary aim

of this section was:

to ensure that every person charged with such an offence will be

assured of a trial in due course of law by a group of laymen who,

chosen at random from a reasonably diverse panel of jurors drawn

from the community, will produce a verdict of guilty or not guilty free

from the risks inherent in a trial conducted by a judge or judges only,

11 Law Reform Co mmission of New South Wales, (2006) available at http://w ww.

lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_r114toc, para.2.77

12 Lee, “Equal Protection and a Deaf Person’s Right to Serve as a Juror,” (1990) 17 New

York University Review of Law and Social Change 81, p.97

13 [1976] I.R. 38

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