Minnesota jurors must speak English — some worry that's a proxy for race in jury selection
After a potential juror in the Kimberly Potter trial was struck after she said she did not understand English well enough to follow the case, some observers wondered why the court didn’t offer interpreters for jurors. Worse, some wondered if language was being used as a proxy for race.
MINNEAPOLIS — The trial of former Brooklyn Center police officer Kimberly Potter , who fatally shot Daunte Wright in April when she mistook her gun for a Taser, got underway Wednesday, Dec. 8. And one person who was not in court to hear the opening statements is a woman who was struck from the jury after she said she did not understand English well enough to follow the case.
The same thing happened during jury selection for the trial of Derek Chauvi n, who was convicted of murder in the death of George Floyd . Federal courts and the vast majority of state courts require that jurors speak and understand English.
But both times, some observers wondered why the court didn’t offer interpreters for jurors. Worse, some wondered if language was being used as a proxy for race.
Jasmine Gonzales Rose studies language and race in civil procedure. She's a professor of law and deputy director of research and policy at the Boston University Center for Antiracist Research. On Wednesday, she discussed language requirements for jurors in an interview with MPR News.
Q: Federal courts and the vast majority of state courts require the jurors be able to speak and understand English. Has that always been the case?
A: No, it hasn't. There's actually a very rich history in the United States of allowing jurors to serve through the assistance of interpreters. There's centuries in the common law, in the Anglo-American tradition. We see that in the southwest, early on in this nation's history. And we also see it currently as a practice in New Mexico. Not to mention, interpreters are provided to jurors who are deaf and hard of hearing.
Q: And that's due to the Americans with Disabilities Act, I understand. Some might say, well, hearing impairment is a disability and language fluency is something that people may have a choice in. Is there a difference there, legally?
A: Well, there's a difference of opinion on that. In one case, we can really see a distinction. But there's also those in the disability rights community who talk about sign language interpretation more as a linguistic difference than as disability accommodation. And so I do think there's an important distinction that can be made. And we can see success with interpretation in that situation, so I think we can anticipate success with spoken language as well.
Q: What do we know about the effect that language requirements have on the makeup of juries?
A: There are estimates that about 13 million U.S. citizens are excluded from jury service on the basis of English language juror requirements. And about 11 million of those are U.S. citizens who are Black, Indigenous or other people of color.
But that doesn't take into account people who may be excluded on the basis of having what's perceived as a heavy accent that might somehow impede their jury service. And that's something that I think we should be particularly concerned about.
Q: Can you give us an example of when someone may have been struck from a jury because of their accent?
A: Yes. In the case of State v. Gould in Connecticut, in the state courts, a prospective juror was called, and he identified as Puerto Rican. He was asked over 100 questions over a period of more than 20 minutes, and he was able to answer all of them. But ultimately, although the judge and counsel understood that prospective juror fine, he was struck for cause on the basis that the other jurors would have a difficult time understanding him.
This case actually was appealed all the way up to the state Supreme Court. It found it was in error, but essentially treated it as a harmless error, and the defendant was not allowed to have a new trial.
So here, we have a situation where a prospective juror was struck on the basis of sounding like a racial minority, and that didn't give rise to a new trial. But if he had been struck because he looked like a racial minority, it would have.
Q: A U.S. Supreme Court case looked at a juror who was struck because he was bilingual and did not need an interpreter to hear testimony in another language. Tell us about that, and how the justices ruled.
A: So this is that case of Hernandez v. New York , where the Supreme Court upheld a prosecutor striking multiple Latino jurors on the basis of their bilingual abilities. And this was in a heavily Spanish-speaking area, and where there was a Latino defendant. And in response to a challenge by defense counsel, the prosecutor claimed that he was concerned about these jurors, not due to their race, but because they were English-Spanish bilingual, and he was not certain that these prospective jurors would follow the English-language translation of Spanish-language evidence in that trial.
This was a plurality decision, so we didn't have a majority decision. But we had Justice Stevens who was joined by Justice Marshall, dissenting. They recognized this relationship between language and race. On the other hand, Justice O'Connor, who was joined by Justice Scalia took a perspective that no matter how closely tied race is to language, it's not going to be considered a race-based exclusion. And so they really divided language from race.
Q: Anyone who's been through jury duty has heard about their service being a right. So I'm wondering about the rights of people who don't speak English fluently. What does the Constitution say about this?
A: The Constitution says that people need to be treated equally. So we're thinking here about the 14th Amendment Equal Protection Clause, we're thinking about the Fifth Amendment Due Process Clause. So there are definitely concerns for the constitutional rights for U.S. citizens who are not able to stand in judgment of their peers.
There's also constitutional rights for the parties, particularly the criminal defendants, to have a jury that's selected from a fair cross section of the community. So here, I'm talking about the Sixth Amendment, and then again, thinking about equal treatment with the 14th amendment.