Linguistic diversity in deaf defendants and due process rights

Historically, ensuring the due process rights of deaf defendants has been a problematic issue in the criminal justice system (McAlister, 1994; Smith, 1994; Vernon & Coley, 1978; Vernon & Greenburg, 1996; Vernon & Miller, in press; Vernon & Raifman, 1997; Whalen, 1981; Wood, 1984). Inadequate communication can radically affect a deaf defendant's interactions in the courtroom. Pursuant to the concepts of fairness enshrined in the U.S. Constitution and the specific statutory language contained in federal and state laws, the courts must provide equal access for deaf defendants (Berko, 1992; Gallie & Smith, 2000; McCoy, 1992; Simon, 1994; Vernon & Raifman, 1997). It is the responsibility of the court to ensure that the appropriate accommodation is provided in the language most readily understood by the defendant.When adjudicating a deaf criminal defendant, courts must make certain that the defendant has equal access to various due process activities, such as assisting counsel in the development of a defense, deciding whether to testify, deciding which plea to enter, understanding the charges, understanding one's position as defendant, and comprehending the role of the defense and prosecuting attorneys, and judge (Berko, 1994; King, 1990; Simon, 1994; Smith, 1994; Vernon & Coley, 1978; Vernon & Miller, in press; Vernon, Raifman, & Greenberg, 1996).However, complex linguistic issues that impinge on adjudicative competence are present in some deaf defendants (Vernon & Miller, in press; Vernon & Raifman, 1997). Adjudicative competence refers to an individual's ability to adequately comprehend and participate in legal proceedings and due process activities. When diverse language use is an issue, a deaf defendant's ability to participate in proceedings can be established by the court using the modern test of adjudicative competence (Dusky v. U.S., 1960). This test examines a defendant's state of mind at the time of trial rather than at the time of the offense in terms of these factors: a defendant's capacity to participate, reasonable understanding of the proceedings, and level of cognitive functioning, irrespective of any mental disorder. This article will outline linguistic barriers to due process for deaf defendants.