Could deaf people serve on Maryland juries in the 1980s, and were they entitled to a sign language interpreter?

Plain-English summary

Two members of the Maryland Commission on the Hearing Impaired asked the Attorney General four questions about the rights of hearing-impaired people in the criminal justice system: as defendants, witnesses, jurors, and victims or suspects during an investigation. The opinion addressed each in turn.

On interpreters for defendants, the opinion concluded that Article 27, §623A, which required a court to appoint an interpreter for a deaf defendant in "any criminal proceeding in any court," was broad enough to cover pre-sentence hearings, since Maryland case law treated sentencing as a stage of the trial and the Maryland Rules defined "proceeding" to include any part of a criminal prosecution. On jury service, the opinion found the question harder: the statute disqualifying jurors who could not "comprehend spoken English" had an unclear legislative history, but a telephone survey of six county jury commissioners found none were disqualifying deaf jurors who used interpreters, and Maryland's own administrative practice, principles of statutory construction, and out-of-state case law all supported letting deaf jurors serve with an interpreter, at least those who communicated through signed English rather than American Sign Language (which the opinion treated as a genuinely separate language). The opinion recommended the legislature clarify the statute rather than leave the question to inference. On investigations, it found no Maryland statute required an interpreter for a hearing-impaired witness, victim, or suspect, but noted constitutional due process and the federal Rehabilitation Act's Section 504 would require effective communication in some circumstances, including during Miranda warnings, since a suspect cannot knowingly waive rights that were not effectively communicated.

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did Maryland law in 1985 require an interpreter for a deaf person at a pre-sentence hearing?
Yes. The opinion concluded that Article 27, §623A's requirement of an interpreter in "any criminal proceeding in any court" covered pre-sentence hearings, relying on Smith v. State, 11 Md. App. 317, 273 A.2d 626 (1971), which held sentencing was a stage of the trial, and on the Maryland Rules' broad definition of "proceeding."

Were deaf people actually being kept off Maryland juries because of the English-language requirement?
No, according to the survey the opinion described. A telephone survey of jury commissioners in six Maryland counties found deaf persons had not been disqualified under §8-207(b)(3), and in Montgomery County about 40 deaf people had been in the jury pool with 8 having served, without reported problems.

Did the English-language juror rule clearly allow deaf jurors who used American Sign Language?
No. The opinion distinguished signed English, which it treated as English in a different form and therefore consistent with the "comprehend spoken English" requirement, from American Sign Language, which it described as a separate language with its own grammar, meaning a juror who knew only ASL likely would not meet the statutory requirement as then written.

Was a hearing-impaired suspect entitled to an interpreter during police questioning or Miranda warnings?
The opinion found no Maryland statute required one, but noted that federal due process under the Fifth and Fourteenth Amendments, applied through Miranda v. State of Arizona, 384 U.S. 436 (1966), required the government to use some effective method of communication, since a waiver of the right to counsel must be made knowingly and intelligently.

Did federal disability law require Maryland to accommodate deaf jurors?
Section 504 of the Rehabilitation Act, 29 U.S.C. §794, did not force a state to let deaf people serve as jurors, but the opinion noted that once a state chose to permit deaf jurors, Section 504 and its implementing regulations required reasonable accommodations such as an interpreter.

Background and statutory framework

Article 27, §623A required Maryland courts to appoint a qualified interpreter for a deaf defendant in any criminal proceeding, and the opinion read the Maryland Rules' definitions of "action" and "proceeding," Maryland Rule 1-202(r) and 1-202(a), to bring pre-sentence hearings within that requirement. Jury qualifications were governed by §8-207(b)(3) of the Courts Article, which disqualified a person unable to speak or comprehend spoken English, alongside separate disqualifications for illiteracy and physical or mental impairment in the surrounding subsections, and by Section 8-202(e)(vii), which asked prospective jurors only whether they could "read, write, speak and understand the English language" without the word "spoken." The opinion applied Maryland deference principles for long-standing administrative interpretation, citing Maryland Commission on Human Relations v Bethlehem Steel Corporation, 295 Md. 586, 592 (1983), and Dept, of State Planning v. Mayor and Council of City of Hagerstown, 288 Md. 9, 425 A.2d 296 (1980), and the rule that ambiguous statutory language should be read so all parts of a statute are harmonized, citing Scott v. State, 297 Md. 235, 465 A.2d 1126 (1983).

For the jury-secrecy concerns raised by having an interpreter present during deliberations, the opinion looked to out-of-state authority, including People v. Guzman, 478 N.Y.S.2d 455 (1984), which allowed a signed-English user to serve but excluded an ASL-only juror, and Eckstein v. Kirby, 452 F.Supp. 1235 (E.D. Ark. 1978), which upheld disqualification under a different, hearing-specific Arkansas statute. It distinguished intrusion-by-a-13th-person cases like United States v. Virginia Electric Corp., 335 F.2d 868 (4th Cir. 1964), and Oliver v. State of Maryland, 25 Md. App. 647, 334 A.2d 572 (1975), noting those involved officials such as bailiffs whose opinions could carry weight with the jury, unlike a neutral interpreter bound by the Registry of Interpreters for the Deaf's Code of Ethics. On investigations and Miranda rights, the opinion applied Miranda v. State of Arizona, 384 U.S. 436 (1966), and the Maryland Rules governing prompt presentment (Rule 4-212(1)) and the judicial officer's duties at initial appearance (Rule 4-213), alongside existing Maryland interpreter statutes for other settings: public hearings (Article 30, §2), employee grievance proceedings (Article 30, §2A), and trial witnesses or parties (§9-114 of the Courts Article). It found no equivalent statute covering field investigations or Miranda warnings themselves, leaving those situations governed by constitutional due process and, where federal funding was involved, by Section 504 of the Rehabilitation Act and its implementing regulation, 28 C.F.R. 42.503(f).

Citations

Statutes:

• Article 27, §623A of the Maryland Code (interpreter for deaf defendant in criminal proceedings)
• §8-207(b)(3) of the Courts Article (juror disqualification for inability to comprehend spoken English)
• Maryland Rule 1-202(r) (definition of "proceeding")
• Maryland Rule 1-202(a) (definition of "action")
• Section 8-202(e)(vii) (juror qualification form language ability question)
• §2-503 of the Courts Article (oath of secrecy for grand jury stenographers)
• Maryland Rule 4-212(1) (prompt presentment of a defendant in custody)
• Maryland Rule 4-213 (judicial officer's duties at initial appearance)
• Article 30, §2 (interpreters at public hearings)
• Article 30, §2A (interpreters at employee grievance proceedings)
• §9-114 of the Courts Article (interpreter for a party or witness at trial)
• 29 U.S.C. §794 (Section 504 of the Rehabilitation Act of 1973)
• 28 C.F.R. 42.503(f) (DOJ regulation requiring interpreters as an auxiliary aid)

Cases:

• Smith v. State, 11 Md. App. 317, 273 A.2d 626 (1971)
• Maryland Commission on Human Relations v Bethlehem Steel Corporation, 295 Md. 586, 592 (1983)
• Jackson Marine Sales v. State Department of Assessments, 32 Md.App. 213, 217 (1976), cert, denied, 278 Md. 725 (1976)
• Dept, of State Planning v. Mayor and Council of City of Hagerstown, 288 Md. 9, 425 A.2d 296 (1980)
• Comptroller of Treasury v. John C. Louis Co., Inc., 285 Md. 257, 404 A.2d 1045 (1979)
• Scott v. State, 297 Md. 235, 465 A.2d 1126 (1983)
• People v. Guzman, 478 N.Y.S.2d 455, 465 (1984)
• Eckstein v. Kirby, 452 F.Supp. 1235 (E.D. Ark. 1978)
• United States v. Virginia Electric Corp., 335 F.2d 868 (4th Cir. 1964)
• Oliver v. State of Maryland, 25 Md. App. 647, 650, 334 A.2d 572, 574 (1975)
• Levinson v. Crews, 282 N.Y.S.2d 83 (App. Div. 1967), affd, 289 N.Y.S.2d 619 (N.Y. 1968), remittitur amended, 290 N.Y.S.2d 924 (1968), appeal dismissed, 393 U.S. 13 (1968)
• Miranda v. State of Arizona, 384 U.S. 436 (1966)
• Brown v. Allen, 344 U.S. 443, 473 (1953)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1985/Volume70_1985.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

HANDICAPPED

Deaf Persons—Jury Service—Rehabilitation Act—Provision of Interpreting Services During Criminal Process.

April 2, 1985

Sheila Mentkowski and Robert J. Mather
Maryland Commission on the Hearing Impaired

As members of the Maryland Commission on the Hearing Impaired, you have asked our office whether hearing impaired persons in the State of Maryland have certain legal rights. Specifically, you asked four questions dealing with the rights of a hearing impaired person as a defendant, witness, juror or victim in Maryland's criminal justice system. The following is our analysis of these four questions.

I

"Whether Article 27, §623A of the Maryland Annotated Code, which requires a court to appoint a qualified interpreter for a deaf defendant in 'any criminal proceeding in any court' also extends to pre-sentence hearings[.]"

As you point out, Article 27, §623A requires that an interpreter be provided to certain hearing impaired individuals in any criminal proceeding in any court to assist the defendant throughout the proceedings. It is our conclusion that this language is broad enough to require that an interpreter be provided to a hearing impaired individual involved in a pre-sentence hearing.

Our conclusion is supported by Maryland case law and the Maryland Rules. The Court of Special Appeals has held that the sentencing process is a stage of the trial. Smith v. State, 11 Md. App. 317, 273 A.2d 626 (1971). The Maryland Rules suggest that this stage of the trial is a "proceeding," within the meaning of §623A. Maryland Rule 1-202(r) defines "proceeding" as "any part of an action." "Action" is then defined as "all the steps by which a party seeks to enforce any right in a court or all the steps of a criminal prosecution." Maryland Rule 1-202(a). A pre-sentence hearing is a step of a criminal prosecution. It is therefore a part of an action or a "proceeding" under §623A.

II

"Whether §8-207(b)(3) of the [Courts Article of the] Maryland Annotated Code, which provides for the disqualification of a person as a juror if he/she is unable to speak the English language or comprehend spoken English, disqualifies a potential[,] hearing impaired juror who requests an interpreter to assist in facilitating the communications process during the jury deliberations[.]"

The question of whether §8-207(b)(3), which requires that a juror be able to speak the English language and comprehend "spoken English," disqualifies a hearing impaired person who requests an interpreter is a very complex and difficult one. This provision's legislative history does not offer a clear answer. Although administrative practice and certain principles of statutory construction support the conclusion that §8-207(b)(3) does not disqualify a hearing impaired person who requests an interpreter, the point is sufficiently in doubt that legislative clarification is highly desirable.

Clearly, it is within the power of the General Assembly to decide whether deaf persons should serve as jurors. The Supreme Court has acknowledged the power of the states to prescribe relevant qualifications for jurors "so long as the classifications have relation to the efficiency of the jurors and are equally administered." Brown v. Allen, 344 U.S. 443, 473 (1953). While the General Assembly has this power, it is unclear how the power has been exercised on the issue of jury service by deaf persons. The analysis that follows indicates why legislative clarification is needed.

Since this statute's history was not helpful in determining whether the General Assembly intended to disqualify deaf persons as jurors, we looked next at administrative practice. Unless clearly erroneous, long-standing and consistent administrative practice is entitled to considerable deference in determining the proper construction of a statute under which an agency operates. See, e.g., Maryland Commission on Human Relations v Bethlehem Steel Corporation, 295 Md. 586, 592 (1983); Jackson Marine Sales v. State Department of Assessments, 32 Md.App. 213, 217 (1976), cert, denied, 278 Md. 725 (1976).

A telephone survey of the jury commissioners in six Maryland counties reveals that deaf persons have not been disqualified as jurors under §8-207(b)(3).1 In Montgomery County, deaf persons have served on juries since about 1979. Approximately 40 have been in the jury pool and 8 have actually served on juries. The Jury Commissioner says there have been no problems associated with service by deaf jurors and that they have served extremely well. The jury commissioners in each of the other counties said that they would not disqualify a deaf person who wishes to serve but that none have asked to do so.

Although administrative interpretation of a statute is not binding upon courts, they do consider and, depending upon the circumstances, give greater or lesser weight to the interpretation of a statute by an agency charged with its implementation. Dept, of State Planning v. Mayor and Council of City of Hagerstown, 288 Md. 9, 425 A.2d 296 (1980); Comptroller of Treasury v. John C. Louis Co., Inc., 285 Md. 257, 404 A.2d 1045 (1979). The expertise and experience of the jury commissioners and the consistency of their interpretation are due considerable weight. The administrative practice of the jury commissioners over a period of at least five years supports an interpretation of the statute that allows deaf persons to serve as jurors.2

Another principle of statutory construction indicates that if a particular section is ambiguous, the statute should be examined as a whole and construed so that all of its parts are given effect and harmonized. Scott v. State, 297 Md. 235, 465 A.2d 1126 (1983). The meaning of the words "spoken English" in §8-207(b)(3) is ambiguous. Analyzing §8-207 as a whole, each section does seem to target a specific group for exclusion. For example, §8-207(b)(2) appears to exclude those who are illiterate; §8-207(b)(3), those who are foreign speaking; and §8-207(b)(4), those who have a physical or mental impairment. It may be reading too much subtlety into the General Assembly's use of the words "spoken English" to conclude that they intended to disqualify deaf persons by (b)(3) rather than by (b)(4), which clearly and specifically excludes the physically impaired who cannot satisfactorily serve. However, the sections of §8-207 are not mutually exclusive and the General Assembly may have intended that deaf persons be disqualified by either or both sections.3

In order to determine the meaning of ambiguous words, it may also be helpful to examine related sections in the same subtitle. Another section of the juror selection subtitle mandates that a qualification form inquire of each potential juror "if he is able to read, write, speak and understand the English language." Section 8-202(e)(vii). Although this section was enacted at the same time as §8-207 and has been amended, the crucial word "spoken" is not used in front of "English language." Therefore, a deaf person would not be disqualified in the initial selection of potential jurors, but would be automatically disqualified later by the jury judge under §8-207(b)(3) if this provision were read as a bar to service by deaf persons. As the court said in a case that analyzed New York's juror qualification statute, to include a person in the jury pool but to automatically exclude him at voir dire, is "to do in the vestibule what could not be done outside the front door." People v. Guzman, 478 N.Y.S.2d 455, 465 (1984).

Although these principles of statutory construction indicate that the General Assembly did not intend to exclude deaf persons by the use of the words "spoken English" in §8-207(b)(3), they are not an adequate foundation on which to base a conclusive answer. Another way to interpret statutes and determine whether they apply to a given set of facts is to look at the underlying purpose of the statute. One purpose of the §8-207(b)(3) disqualification may be to exclude foreign speaking persons because they lack the necessary understanding of the community, its values and standards to adequately serve on a jury. However, a second purpose may be to exclude anyone, foreign or deaf, who requires the assistance of an interpreter, because of concerns about a 13th person in the jury room, the possible disruption of the orderly operation of the court, and the problem of the hearing impaired juror adequately analyzing evidence. Eckstein v. Kirby, 452 F.Supp. 1235 (E.D. Ark. 1978). We simply do not know whether these concerns underlie §8-207(b)(3), but the words used, "comprehend spoken English", do serve as a safeguard against these potential problems.

Yet, we should not exaggerate the extent of the difficulties that attend the seating of a deaf juror. Practical experience in other states indicates that an interpreter would not disrupt the order of the court and that a deaf juror may analyze evidence as well as a juror without a hearing impairment.4 A recent decision by a New York trial court indicates that at least nine jurisdictions in the United States allow deaf persons to serve as jurors. The Court also notes that they have served with distinction and have been found to be an unexpected asset to the deliberative process. Guzman, 478 N.Y.S.2d at 460 nn. 17 and 18.

Some courts have suggested that intrusions by a 13th person in the jury room threaten the secrecy of deliberations and create the possibility that the jury's decision will be influenced by that person. Eckstein, 452 F.Supp. at 1244.5 However, practical experience in Maryland and the nine states that allow interpreters in the jury room has revealed none of these anticipated problems.

The interpreter is not a participant but is a communications facilitator. The jurors and the interpreter can be made aware by the court of the purely mechanical function of the interpreter. Guzman suggests that instructions to the interpreter and the jury would sufficiently address the problems of improper influence. Guzman, 478 N.Y.S.2d at 466 n. 49. The interpreter should be instructed that his or her only function in the jury room is to facilitate communications, not to counsel, advise, or interject personal opinions or personally participate in any way.6 The jury should be instructed that if the interpreter communicates with the jurors in any way other than as directed by the court, the jury should cease deliberations immediately and inform the court.

Interpreters are also prevented by the Interpreter's Code of Ethics from revealing any assignment-related information. Registry of Interpreters for the Deaf, Code of Ethics, 61 (1980). If the General Assembly feels this code and court instructions are not sufficient to ensure the secrecy of deliberations, it could address the issue by statute, as it has done for stenographers at Grand Jury proceedings who are required to take an oath of secrecy. §2-503 of the Courts Article.

Concerns about the accuracy of an interpreter's transmission have also been raised. However, the issue of accuracy is equally important when any non-English speaking witness or defendant testifies through an interpreter. The jury, the judge, the attorneys, the court reporter, and all future appellate courts are dependent upon the record made by that interpreter. If we do not trust the skills of that person, then we have no real trial. There is no reason we should have less trust in an interpreter in jury deliberations than we do in other phases of the trial. To ensure quality and accuracy, court administrators should define qualifications and impose standards for interpreters.

As well as looking to principles of statutory construction and administrative practice in Maryland, we have reviewed statutes in other states that disqualify deaf persons as jurors. We have found no other statute that uses the words "spoken English." Cases from other states that have upheld the disqualification of deaf persons as jurors have done so on the basis of other statutory sections than an English language section. For example, the court in Eckstein upheld the disqualification of a deaf juror based on a section of an Arkansas statute that specifically disqualifies substantially hearing impaired persons. Another section of the statute also disqualifies persons unable to speak or understand the English language, but the court did not interpret or base its decision on that section. Eckstein, 452 F.Supp. at 1244. Other courts have disqualified the deaf on the ground that they did not meet a statutory requirement that they be in possession of their "natural faculties". Levinson v. Crews, 282 N.Y.S.2d 83 (App. Div. 1967), affd, 289 N.Y.S.2d 619 (N.Y. 1968), remittitur amended, 290 N.Y.S.2d 924 (1968), appeal dismissed, 393 U.S. 13 (1968).7

Although courts have not disqualified deaf persons as jurors for failure to meet the English language requirement, §8-207(b)(3) may disqualify a deaf person who knows and communicates only through American Sign Language ("ASL"). The court in Guzman allowed a deaf person who communicated through signed English to serve as a juror, but held that a person who knows only ASL does not meet New York's English language requirement and could not serve. ASL is a separate language from English, with its own grammar and syntax. An interpreter using ASL is therefore like any foreign language interpreter. However, signed English, lipreading, fingerspelling, or a combination of these would meet the English language requirement. Signed English is not a separate language; rather, it is English in a different form. The interpreter is thus not translating or interpreting, but merely transmitting exact words in English from the speaker through the interpreter to the listener.

Although §8-207(b)(3) appears to disqualify a deaf person who uses only ASL, the General Assembly clearly may allow them to serve by clarifying the statute. There are significant differences between a citizen who is deaf and a citizen who is foreign speaking. The deaf citizen is much more likely to know the community, its values and standards. Furthermore, many deaf persons who communicate through ASL work in complex and highly technical fields, as doctors, lawyers, scientists, professors. They work and participate in the community in a way that a foreign speaking person, who is unable to speak or comprehend English, cannot function.

Although deaf persons are not presently being disqualified under §8-207(b)(3), and we see no reason for a change in that practice, it is unclear what the General Assembly intended concerning their service as jurors in Maryland. For the reasons discussed above, legislative clarification of §8-207 would be most desirable.

One other law relevant to the issue you have raised is the Federal Rehabilitation Act of 1973. Section 504 of the Act provides that no otherwise qualified handicapped individual shall solely, by reason of that handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination, under any program or activity receiving federal financial assistance. 29 U.S.C. §794. The Department of Justice ("DOJ") regulations implementing §504 require that recipients of federal financial assistance from the Department of Justice and each program receiving or benefiting from such assistance and employing 15 or more persons provide appropriate auxiliary aids to qualified handicapped persons with impaired sensory, manual or speaking skills. The regulation specifies a qualified interpreter as one of the aids that must be provided. 28 C.F.R. 42.503(f).

The Department of Justice has supported the conclusion that §504 and its regulations require the provision of an interpreter to an otherwise qualified juror. In an amicus curiae brief filed with the Ninth Circuit Court of Appeals, DOJ urged the Court to uphold the federal district court's grant of summary judgment to a deaf person who was seeking an injunction against a county for continuing to refuse to pay for an interpreter so that he could serve as a juror. In its brief, DOJ argued that once chosen to serve as a juror, a deaf person is entitled to interpreter services under Section 504 and DOJ regulations. 28 C.F.R. 42.503(f).8

The application of §504 does not affect a state's power to establish qualifications for service on a jury and would not prevent a state from disqualifying deaf persons. However, if deaf persons are permitted to serve by state statute, then §504 and Department of Justice regulations require that reasonable accommodations be made for them.

III

"Whether under any law a qualified interpreter is required in a criminal investigation conducted by a state or local enforcement agency involving a deaf person, whether as a victim, witness, or suspect[.]"

While Maryland law does provide for interpreters at public hearings (Article 30, §2), at employee grievance proceedings (Article 30, §2A), and for a party or witness during a trial (§9-114 of the Courts Article), Maryland has no statute requiring that an interpreter be provided to assist a hearing impaired victim or witness during a criminal investigation. However, in practice, it would seem highly unlikely that an interpreter will not be provided to a victim or witness. Without one, the investigation will result in very little information.

The question of whether an interpreter must be provided to assist a hearing impaired suspect during a criminal investigation is more complex. There is no statutory law requiring the provision of an interpreter. As discussed in answer to your first question, Article 27, §623A provides for an interpreter "in any criminal proceeding in any court." However, an investigation is not a proceeding "in court" and would not be covered by this statute.

If a hearing impaired suspect is arrested and in custody, that person would have the same constitutional due process protections as any other person. Specifically, before questioning a defendant who is in custody, the government must warn that person of the right to counsel guaranteed by the Sixth Amendment and the right against self-incrimination guaranteed by the Fifth Amendment. Miranda v. State of Arizona, 384 U.S. 436 (1966). Without some effective means of communicating with a hearing impaired person, the government cannot fulfill these obligations. To be sure, an interpreter may not be the only effective means of communicating the Miranda warnings. A written communication might be sufficient. However, in practical terms, if the government wishes to question a deaf defendant, providing an interpreter will be the most effective way to gather the information it wishes.

A defendant in custody in Maryland has even greater rights than those granted by Miranda. Under the Maryland Rules, a defendant in custody must be taken before a judicial officer "without unnecessary delay and in no event later than 24 hours after arrest." Maryland Rule 4-212(1). The officer must, under Maryland Rule 4-213,

1) inform the defendant of each offense with which the defendant is charged;
2) advise the defendant of the right of counsel; and
3) determine the defendant's eligibility for pre-trial release.

The judicial officer must have an adequate way to communicate this statutorily required information to a hearing impaired defendant. One of the cost effective and practical methods would be through an interpreter if the person is totally without hearing. Varying degrees of hearing impairment might be addressed by different methods.

In summary, there is no statute or law that grants a hearing impaired person the right to an interpreter during a criminal investigation. However, a hearing impaired defendant who is in custody has the same rights under federal and Maryland law as any other person in custody. In order to protect these rights, the government must communicate effectively with that person.

IV

"What state law covers the situation where a deaf or hearing impaired person may be under arrest and the law enforcement officer is attempting to provide that person with his/her Miranda warning rights? It does not appear that Article 27, §623A of the Maryland Code applies to this situation. We are unable to locate any law within the Maryland Code that would require that a qualified interpreter be provided at this time."

We agree with your assessment that there is no state statutory law that requires an interpreter to be provided during the Miranda warnings. Article 27, §623A requires an interpreter "in any criminal proceeding in any court." Miranda rights would not be given in a court. However, the due process requirements of the Fifth and Fourteenth Amendments of the U.S. Constitution would require that a law enforcement officer use some method that is effective in communicating with a hearing impaired person when giving the Miranda warnings. Miranda requires that a suspect intelligently and knowingly waive the right to counsel. A hearing impaired person cannot knowingly and intelligently waive this right unless the right is effectively communicated.

We hope that his analysis will be of help to you in your work on the Maryland Commission on the Hearing Impaired.

Stephen H. Sachs, Attorney General

Ellen A. Callegary, Assistant Attorney General
Rebecca M. Hornbeck, Assistant Attorney General

Editor's Note: The preceding opinion was originally written as a letter of advice. Because of the importance of the issues addressed, it is reprinted here in a slightly revised format.

1 Baltimore City, Montgomery County, Prince George's County, Howard County, Garrett County, and Dorchester County.

2 The fact that deaf persons are serving on juries in Maryland has received public attention. The Washington Post in June, 1982, published an article about jury service by a hearing impaired woman who used an oral interpreter in a Montgomery County court.

3 Even if the words "spoken English" are construed to exclude a deaf person who requires an interpreter, they would not exclude a deaf person who reads lips and thus comprehends "spoken English."

4 See Note, Jury Selection: The Courts, The Constitution, and The Deaf, 11 Pac. L. J., 967, 968 n. 5 (1980) (documenting cases in which deaf persons have successfully served as jurors); Note, Due Process: Deaf and Blind Jurors, 17 New Eng. L. Rev. 119 (1981).

5 The Court of Appeals for the Fourth Circuit has said that any intrusion into jury deliberations is reversible error. United States v. Virginia Electric Corp., 335 F.2d 868 (4th Cir. 1964). However, no case has addressed the question of whether an interpreter would be seen as an intrusion. Cases that have addressed the problem of a 13th person as an intruder have concerned persons such as a judge, alternate juror, bailiff, who are cloaked with official authority and whose presence or opinions might carry great weight with the jury. Furthermore, the only Maryland case that deals directly with a 13th person in the jury room indicates that a showing of prejudice is required before finding the intrusion to be reversible error. In this case, a bailiff answered the question of a jury foreman during jury deliberations. The Court of Special Appeals indicated that the revelation of this remark shifted the burden to the State to "exorcise the spectre of prejudice . . ." Oliver v. State of Maryland, 25 Md. App. 647, 650, 334 A.2d 572, 574 (1975).

6 A similar practice was followed in a Montgomery County Circuit Court case in which a deaf juror served. Judge Rosalyn Bell swore the interpreter to make accurate interpretations and not to interject his own ideas about the case. Scaggs v. Brown, No. 53016 (Cir. Ct. of Montgomery County, 1982). This practice has been followed by courts in other states.

7 The New York legislature amended this language in their statute effective September, 1983, so that deaf persons are no longer disqualified.

8 The case was settled by the parties before argument. A copy of the amicus brief filed on September 9, 1982, is on file in the Attorney General's Office.