Saturday, August 2

Legal Rights For Court

I am about to confront, once again, the right for Rebecca to have an interpreter. Since, this appears to be a common thing (at least I find it to be) I will start blogging about how I fight this unjust and cruel world that we live in.

When I reminded Rebecca's attorney that Rebecca is Deaf and will need an interpreter, I got the same reaction that I seem to get a lot : "Can't you interpret?" I HATE THAT QUESTION!! I feel like if I say no, then they think, "How do you communicate with her then?" and if I say yes, then they are missing the point. I stopped answering yes or now and just advise them of her rights. Some people are persistant, but you have to be persistant back. Her attorney told me that sometimes I will have to be both the parent and the interpreter - like I didn't know this. I find myself in the interpreter role all the time, but not for court! I will not interpret for court!!! This is our families day and we all have the right to enjoy it together!!! URG!! Anyway, jumping down from my soapbox...here is what I will be sending the attorney and the court in East Texas to help me travel down this road...God help us!

State and Local Courts
To refer others to this page, please use:http://www.nad.org/statelocalcourts
People who are deaf or hard of hearing have a right to communicate effectively and to participate in proceedings and activities conducted by all state and local courts. Specifically, they are entitled to have courts provide and pay for auxiliary aids and services to enable them to understand and be understood. This right is based on a federal law, Title II of the Americans with Disabilities Act (ADA). 42 U.S.C. §§ 12131-12134. The U.S. Department of Justice has issued regulations explaining the requirements of the ADA. 28 C.F.R. Part 35, 56 Fed. Reg. 35694 (July 26, 1991) (U.S. Department of Justice Final Rule: Nondiscrimination on the Basis of Disability in State and Local Government Services).
The ADA protects all persons participating in court activities, including litigants, witnesses, jurors, spectators, and attorneys. It applies to any type of court proceeding in any type of state or local court, including civil, criminal, traffic, small claims, domestic relations, juvenile, and other specialized courts. It also applies to other activities conducted by court systems, such as personnel, educational activities, marriage ceremonies performed by court personnel or magistrates, and communication with clerks and other court personnel. This law also protects deaf or hard of hearing parents of minor children who are involved in court proceedings. Parents of a minor who is the subject of a juvenile proceeding are clearly “participants” in the proceeding even though the parents are not parties or witnesses. They are entitled to auxiliary aids and services, such as qualified interpreter services, during the proceeding. Furthermore, the ADA applies to “members of the public.” Therefore, deaf or hard of hearing spectators who are neither parties nor witnesses may request auxiliary aids and services, such as qualified interpreter services, from a court.
Under the ADA and its regulations, local and state courts are required to provide auxiliary aids and services to ensure effective communication with deaf and hard of hearing individuals in civil, as well as criminal, proceedings:
(a) A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.
(b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.
(2) In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.
28 C.F.R. § 35.160 (emphasis added).
The U.S. Department of Justice regulation defines the term “auxiliary aids and services” for deaf and hard of hearing individuals to include qualified interpreters, transcription services, captioning, videotext displays, written materials, assistive listening devices and systems, or other effective methods of making aurally delivered materials accessible. 28 C.F.R. § 35.104. For deaf or hard of hearing individuals who use sign language, the most effective auxiliary aid or service which a court can provide is usually the service of qualified sign language interpreters, trained in legal procedure and terminology. For deaf or hard of hearing individuals who do not use sign language and who have good levels of reading comprehension, the appropriate auxiliary aid or service is usually the use of a system that provides computer assisted real time transcription (also called real time captioning, communication access real time translation, or CART). Through this system, spoken words are converted into text using a stenotype machine, computer, and special software. The text appears on a computer monitor or other display, which can be read by the deaf or hard of hearing person. In its Analysis of the regulation, the Department of Justice uses “computer-assisted transcripts” as an example of an auxiliary aid or service that might be effective in a courtroom for a person who is deaf or hard of hearing who uses speech to communicate. 56 Fed. Reg. 35712. For some deaf or hard of hearing individuals who do not use sign language, an oral interpreter may be needed to facilitate lipreading. For individuals who use hearing aids or who have cochlear implants, the appropriate auxiliary aid might be amplified or modified sound equipment, a courtroom with appropriate acoustic properties, and/or assistive listening systems. The appropriate auxiliary aid or service depends on many factors. Any time it becomes apparent that a person cannot hear effectively in a courtroom, court officers should confer with that individual to determine the appropriate auxiliary aids or services necessary to communicate effectively with that individual.
Some state courts still have laws that permit state judges to assess the cost of auxiliary aids or services, such as qualified interpreter services, as “court costs.” These state laws violate the ADA. The ADA regulation states that the individual with a disability cannot be charged for the auxiliary aid or service provided by a state or local court:
A public entity may not place a surcharge on a particular individual with a disability . . . to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual . . . with the nondiscriminatory treatment required by the Act or this part.
28 C.F.R. § 35.130(f). In its Analysis to the ADA regulations, the Department of Justice explicitly addressed the issue of court costs:
The Department [of Justice] has already recognized that imposition of the cost of courtroom interpreter services is impermissible under section 504 [of the Rehabilitation Act of 1973.] . . . (45 Fed. Reg. 37630, June 3, 1980). Accordingly, recouping the costs of interpreter services by assessing them as part of court costs would also be prohibited.
56 Fed. Reg. 35705-06 (July 21, 1991). Therefore, states may not enforce laws which permit qualified sign language interpreter fees to be assessed as “costs.”
Courts are also required to make “reasonable modifications” in their policies, practices and procedures, when necessary to prevent discrimination on the basis of disability. For example, a court might be required to move a trial to a smaller courtroom with better acoustics to assist a participant who uses a hearing aid. A trial may need to be interrupted more frequently to permit a deaf criminal defendant to consult privately with his or her attorney, because the sign language communication will be visible to witnesses and opponents. Court personnel should develop a method of notifying a deaf or hard of hearing person that a case is being called, because that person may not hear a spoken announcement. Similarly, videos that introduce jurors or parties to court procedure should be captioned.
In conclusion, court systems are not accessible to deaf or hard of hearing individuals when they cannot understand or participate effectively in the proceedings. In recognition of this fact, the federal government has placed an obligation on state and local courts to modify their procedures and to provide auxiliary aids and services, such as qualified interpreter and computer assisted real time transcription services, at no cost to the deaf or hard of hearing individual.

5 comments:

mishkazena said...

Yes, it's an ongoing battle. I filed a formal complaint with Dept of Justice against D.C. Court in 1979, long before ADA days. I won after a lengthy battle. My lawyer told me later that for many years, the courts still denied interpreters periodically, resulting in the lawyers showing my case decree to the DC court system.

Stay firm. :)

Mother of Bilingual Deaf and Hearing Children said...

Glad you found the NAD info about access to state and local courts. If anyone has questions about that information (i.e., your rights, Rebecca's rights, or their obligations under the ADA), they can contact the NAD Law and Advocacy Center at (301) 587-7730 or the Texas P&A -- Advocacy, Inc. (see www.advocacyinc.org).

Anonymous said...

If you are not certified for legal interpreting, then any attorney (or judge for that matter) who asks or demands that you interpret for your child is guilty of legal malpractice and should be reported to the state Bar every time it occurs. ;-)

David

Anonymous said...

I find it very hard to deal with the courts and lawyers too. But keep being persistent about your daughter's rights because that's the only way that lawyers - those idealized protectors of the law - will get the picture that they can't skip out on honoring someone's rights. Keep up the good work and know that you are supported!

sara said...

*sigh* I went to court against a landlord once and had called the court and they arranged to CART for me.

I got there and found out that My Own Lawyer had told them I didn't need that because we were going to do mediation in a small room with just 4 people. I found out after (my mom was there too) that I miss-heard and miss-answered at least one question that may have affected the settlement decision. It was one of those cases where the mediator did her job perfectly, both my landlord and I felt like we lost.

I guess I should have sued my lawyer.. but in the end I was just glad everything was over.