Abstract

Crime against people with developmental and other disabilities is similar in scope to that of women, children and the elderly. However, their victimization remains largely invisible and unaddressed (Bryen, Carey, & Frantz, 2005; Sobsey, 1994). Research from the United States indicates that people with developmental disabilities are four to 10 times more likely to be victims of a crime and that crimes against them are less likely to be reported or prosecuted (Martin, Ray, Sotres-Alvares, Kupper, Moracco & Dickens, 2006). Individuals with disabilities who have little or no functional speech face a double vulnerability when it comes to crime, abuse, and neglect as they are often the voiceless and invisible members of society (Bryen & Frantz, 2004; Bryen, Carey, & Frantz, 2005; Davies, 2002).

The purpose of this study was two-fold: (1) describe court rulings in the United States that clarify the impact that having a little or no functional speech (LNFS) and relying on the use of AAC plays in testifying in court, and (2) describe the outcomes of court cases when someone with LNFS testifies in court as a witness in their own defence when they have been a victim of a crime. In order to accomplish these dual purposes, a comprehensive search of federal and state cases involving people with LNFS and their ability to successfully testify in court, a comprehensive search of federal and state cases involving people with LNFS and their ability to testify in court was performed using LexisNexis. The results of this study are discussed in terms of policies and practices that affect people with LNFS themselves, professionals who support them, and the court system.

Introduction

Crime against people with developmental and other disabilities is similar in scope to that of women, children and the elderly. However, their victimization remains largely invisible and unaddressed (Bryen, Carey, & Frantz, 2005; Sobsey, 1994). Research from the United States indicates that people with developmental disabilities are four to 10 times more likely to be victims of a crime and that crimes against them are less likely to be reported or prosecuted (Martin, Ray, Sotres-Alvares, Kupper, Moracco & Dickens, 2006).

People with disabilities are particularly vulnerable to crimes of a sexual nature and they are often repeat victims (Nosek, Howland & Young, 1997; Sobsey & Doe, 1991). Kristin's (2007) research in the United States revealed that people with developmental disability are assaulted, raped and abused at a rate of two times greater than their non-disabled peers. Brownridge (2006) noted that on average more than 50% of women with disability in developed countries had experienced sexual exploitation by the time they reach adulthood. Women with disability in these countries also reported significantly longer durations of physical and sexual abuse when compared to women without disabilities (Nosek et al., 2001).

Children with disabilities are more than twice as likely as children without disabilities to be physically and sexually abused (Sullivan, 2000). Girls with disability are particularly vulnerable, with high rates of violence resulting in health risks, trauma, adolescent pregnancy and susceptibility to HIV/AIDS (Rousso, 2003).

The high incidence of abuse of people with disability seems directly related to the perpetrators' recognition of their vulnerability. Perpetrators are often well-known to their victims and believe that their victims are unable to seek help or report the crime, while the victims fear backlash from the perpetrator, particularly in cases where the perpetrator also provides personal assistance (Powers & Oschwald, 2004; Rand & Harrell, 2009).

Misconceptions about the sexuality of people with disability (and especially those with cognitive impairment) could also predispose this population to be more vulnerable to sexual abuse. The sexuality of this group is often misunderstood. At the one end of the spectrum, there is the belief that that they are sexually innocent — children forever. Inherent to this is the perception that they have little or no understanding of their bodies making them prime targets for those individuals who seek sexual gratification from the abusive act.

The other side of the spectrum reflects the belief that individuals with disability are over-sexed and uncontrolled. This misconception might be the result of being overly friendly with familiar people and strangers alike or in displaying inappropriate sexual expressions or behaviours that make others feel uncomfortable, such as public masturbation. Reasons for the display of inappropriate behavior might be the lack of information that these individuals have about which behaviors are acceptable and which are not, and their difficulty in making sense out of images portrayed in the media like music videos, television and magazines.

The reason why crimes against people with disabilities often remain invisible and unaddressed is because these crimes are often covered up by communities or disability service providers (Brownridge, 2006). This creates a troublesome paradox: while there are higher rates of crime against people with disabilities, there are simultaneous lower rates of disclosure and reporting the crime to the police (Davies, 2002). While disclosure is difficult for everyone, women report greater difficulty in naming the abuse (Powers & Oschwald, 2004). When crime and abuse are reported, they are often handled administratively rather than through criminal prosecution. This might be due to the fact that the police, lawyers, judges and even rape-crisis counsellors, who all form part of the legal protection system, often have no knowledge of how to help a person with disability and therefore find the whole process too daunting (Groce & Trasi, 2004). Sadly, it also appears that sexual abuse incidents of individuals with disabilities are viewed as less serious than of persons without disability. Consequently, lighter court sentences seem to be issued in cases where the victims have been people with disability (Williams, 1993).

Individuals with disabilities who have little or no functional speech face a double vulnerability when it comes to crime, abuse, and neglect as they are often the voiceless and invisible members of society (Bryen & Frantz, 2004; Bryen, Carey, & Frantz, 2005; Davies, 2002). There are many reasons for this increased vulnerability. Firstly, there is the very real risk that they are unable to make themselves heard or unable to call for help (Hanass-Hancock, 2009). Secondly there is the misconception that these individuals are undeveloped, that they lack basic understanding (poor receptive language abilities), are unable to make choices and that they cannot communicate their intent, which seems attractive to potential perpetrators. Thirdly, they are seen as being unable to tell about their victimization due to their communication difficulty (Howe, 2000). Fourthly, when they do tell they are less likely to be believed because they may not be understood due to their communication disability. In some instances this has lead to caregivers believing that the process of telling and subsequent investigation will do more harm than good for the person with the disability (Hanass-Hancock, 2009). Finally, there is the perception that they are unable to testify in court on their own behalf due to competency issues and other criminal codes about hearsay, confrontation, and leading the witness (Borthwick & Crossley, 1998; Bryen, 2009).

Ending the silence of crimes against children and adults requires many strategic approaches focusing on (1) the individual with a disability, (2) the family, (3) disability service providers, (4) law enforcement, (5) the criminal justice system, as well as (6) public policy (Bryen et al. 2004) . Ending the silence of crimes against individuals with disabilities means helping persons with disabilities understand what to do if they have been a victim of a crime; providing training which includes self-defence and personal safety; teaching the difference between healthy sexuality and sexual abuse; establishing partnerships between the justice system, advocates and service providers to support investigation, prosecution and the provision of victim assistance services; expanding existing legislation to include people with disabilities; aggressively applying civil rights laws; and creating national and international public awareness through personal stories. Ending the silence also means understanding the court system so that all stakeholders know how to negotiate the court system so that crime victims with little or no functional speech can successfully appear in court as witnesses in their own defence.

Method

In order to address one of the many problems associated with the high rates of crime, abuse, and neglect against individuals with limited or no functional speech (LNFS), the purpose of this study was two-fold: (1) describe court rulings in the United States that clarify the impact that having LNFS and relying on the use of AAC plays in testifying in court, and (2) describe the outcomes of these court cases when someone with LNFS testifies in court as a witness in their own defence when they have been a victim of a crime. In order to accomplish these dual purposes, a comprehensive search of federal and state cases involving people with LNFS and their ability to testify in court was performed using LexisNexis. The results of this search were analyzed to identify common issues regarding the ability to testify, common resolution of issues or tests applied to analyze the issues, and were analyzed to determine if the discussion of the issues was a holding or merely dicta to warrant citation on a given issue. Cases to which these cases cited for principles were analyzed in the above-mentioned method. All cases which were found to be relevant were saved, reread and sorted into which issues they were pertinent for, and a look for a common pattern or different patterns began.

A total of 13 cases were found spanning the years from 1972 through 2006. An additional court case was included since the first author had personal knowledge and participated in this court preliminary hearing. This resulted in a total of 14 cases involving a person with a disability who alleged to be a victim of a crime and who took their course through the court system in the United States. All of these individuals had limited or no functional speech. The 14 court cases were tried in the following states:

  • 3 in New York State
  • 4 in the Commonwealth of Pennsylvania
  • 1 each in Arkansas, California, District of Columbia, New Jersey, North Carolina, Ohio, and Texas.
Table 1. Information about the victims in the 14 Court cases
DemographicFrequencyPercentage
Gender of Victims (Female)1286%
Age staus (adult)1393%
Primary Medical DiagnosisCerebral Palsy 7 50%
Austism 1 7%
Intellectual Disability 5 36%
Neurological Disease 1 7%
Primary Method of CommunicationSpeech Generating Device 3 21%
Communication board 1 7%
Speech to Speech Transmittal 3 21%
Own Speech 4 29%
Yes/No gestures 1 7%
Faciliatated Communication 1 7%
ChargesSexual Assault or Rape 12 86%
Physical Assault 1 7%
Witness Not Competent 1 7%
Gender of Offender (male) 11 79%

Table 1 provides some basic information about these 14 cases with respect to age, gender, primary medical diagnosis, means of communication, and nature of the crime. As shown in this table, the majority of the victims were female, adult, had been raped or sexually assualted by a male. Primary medical diagnoses were mostly either cerebral palsy or mental retardation (now referred to intellectual disabilities). While not shown in the table, several had a combined diagnosis of both mental retardation and cerebral palsy. All had limited or no functional speech (LNFS). A variety of communication approaches were used in court including the use of a speech generating device, a communication board, yes-no and gestures, speech-to-speech transmission, facilitated communication, and their own slow and difficult spoken language. All were competent to stand trial regardless of their disabilty and their means of communication.

Findings

Testimony by individuals with sigificant communicative difficulties due to cerebral palsy and other disabilities is a novel one in many jurisdictions. Although the issue may be novel, the legal issue which is implicated in the jurisdiction is not.

Presumed Ability of People with Little or No Functional Speech to Testify

Competence to testify in court is different than competence in other areas of the law and society. In state proceedings and federal proceedings in which state law is applied, competence is determined according to state law. In federal courts, Federal Rule of Evidence 601 determines whether someone is competent to testify in a court proceeding. A person is presumed to be competent unless it is shown otherwise under federal law. The burden to show that a person is not competent to testify weighs on the party who wishes to exclude the testimony. Many state rules are similar to the Federal Rule of competence; however, it is necessary to consult the applicable jurisdiction's rules on competence to see if the particular state rule differs.

The determination of competence in federal courts has four major concerns: the ability to communicate testimony in court; the ability to understand the implications of the oath and consequences of lying; whether the memory is sufficiently reliable on the topic of the testimony to communicate what was perceived; and that the testifying party has the first-hand experience of perceiving what they will testify to. All four factors must be met before a witness will be deemed to be competent to testify. The trial judge determines a witness' competence out of the presence of the jury and preferably before a trial begins.

The second factor, the ability to understand the implications of the oath and consequences of lying, is one that is often raised to challenge the competence of people with disabilities to testify. This factor must be shown to be met with people with LNFS; however, the prominent challenge is on the ability of the witness to communicate to the court what the witness perceived. A few different courts have directly addressed this issue and found that individuals with cerebral palsy can be competent to testify by themselves, with a speech-to—speech transmitter or through facilitated communication. Unless a particular case takes place in the venue in which it is being litigated or a higher court to which you could appeal from your current venue, these cases would not have to be directly followed in your jurisdiction, but could be advisory to know what other states and jurisdictions have done. Although examination by the lawyer who calls forth the witness, called direct examination, is usually limited to non-leading questions- questions which do not lead the witness to a purported answer- many courts have allowed for the use of leading questions on direct examination for people with disabilities including those individuals with cerebral palsy and other disabilities which make communication difficult.

In People v. Augustin1 , the court of appeals of California held that a crime victim with cerebral palsy and a related speech disability was competent to testify. In this case, the defendant had struck the victim on multiple occasions and was charged with assault. At trial, the victim testified without the use of an interpreter. She was the chief witness for the prosecution and the defendant was convicted of assault. On appeal, the defendant challenged the victim's competence to testify by saying that she was unable to communicate her testimony to the court.

The California evidence law on competence to testify stated, "[a] person is disqualified to be a witness if he or she is: (1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him [or her]…"2 To this allegation, the court held that the defendant had not properly raised the issue before so that the appeal did not have to be decided on the grounds of whether or not she was competent to testify.3 The court continued, however, to state that the witness was competent to testify because she had not proved that the witness was incapable of expressing herself.4 The moving party has the burden of proving a witness's incompetence according to California state precedent.5 In this case, the court stated that even though there were numerous occasions where the court reporter recorded the testimony as unintelligible, a witness who is merely difficult to understand is not inherently or automatically incompetent to testify under the state evidence rules of competence.6

In Lopez v. Meluzuio7 , the federal court of the Eastern District of New York held that even though a possible witness was found incompetent under state law for the purposes of obtaining a guardian to manage his personal needs and/or property management, he was still competent to testify at a deposition under the Federal Rule of Evidence 601. Federal Rule of Evidence 601 states that "[e]very person is competent to be a witness except as otherwise provided in these rules."8 The competence of a witness depends upon "a capacity to observe, to remember, to communicate and to understand the nature of an oath and the duty it imposes to tell the truth."9 This court also held that the burden of proving incompetence rests on the objecting party.10 The court also found that the competency of a witness to testify is "a threshold question of law which lies exclusively in the trial court's discretion".11 The court in Lopez also relied upon the language from United States v. Benn for its opinion.

In United States v. Benn12 , two men assaulted and attempted to rape an 18 year old woman with mental retardation who did not have signficant communicative difficulties. The court held that there are cases where mental retardation may be so severe and where the testimony may be so prejudicial that the testimony should be excluded by the judge, but if there are sufficient indications of a witness's capacity and of the reliability of the witness's testimony, it should be heard and assessed by a jury.13 The court in Lopez applied this test, even though a different disability affecting the testimonial competency of the witness, in determining that the possible witness was competent to be deposed.

A witness must be capable of expressing him or herself in order to be found competent. Aside from the cases mentioned above, there are other cases in which a witness with cerebral palsy and LNFS was found to be competent and allowed to testify.14 Even if a witness is more difficult to understand than another witness without a disability, the witness is not incompetent to testify unless the other party shows that the method of communication lacks reliability.

Use of Interpreters and Technology to Assist in Testimony

In People v. Augustin, the court also addressed the use of an interpreter or speech-to-speech transmittal to testify. Under California rule of evidence 701, "a person who cannot express himself or herself directly and who would otherwise be disqualified may be competent to testify if the person is capable of communicating through interpretation by one who can understand him [or her]."15 The defendant contended that the court was required to appoint an interpreter under state law, but the court rejected this in saying that even though the statute was broad enough to allow for an interpreter for people with physical disabilities, since the witness was found to be able to communicate effectively enough to be competent as a witness, no interpreter was required.16 Further, when a rule is permissive regarding the appointment of an interpreter, it is at the discretion of the court whether or not an interpreter is needed.17 The court pointed out that the defense counsel understood the witness enough to make evidentiary objections to her testimony and that the court reporter was able to record all of what was said.18 The court suggested that the appointment of a speech therapist or medical professional, but not a member of the witness's family, as an interpreter may have been appropriate if the witness was not able to testify.19

In People v. Miller20 , a speech therapist was a qualified interpreter for a 52 year old victim with severe cerebral palsy when the interpreter (or this this case a speech-to-speech transmitter) was able to give a word-for-word repetition of the witness's responses.21 The court stated the following in dicta:

Just because a procedure is unusual does not mean that it should not take place in a courtroom. The courts today should make every effort to open their door to all who seek to come through them. We can no longer take the attitude that if it has not been done in the past, it should not be done in the future. The age-old stereotyping of people with physical or mental disabilities or a combination of both should be dispensed with as soon as possible. The courts have come out of the dark ages with respect to the treatment of the deaf and hearing impaired, and we should likewise do so with respect to other physical and mental disabilities. If the power to appoint an interpreter in cases of an unusual disability does not exist directly by statute, then it does by statutory interpretation.22

The New York state court found it was within the court's discretion under the section 387 of the Judiciary Law of the state of New York, which was typically only employed to appoint translational interpreters, extended to those with disabilities.23 The qualifications of the interpreter, however, must also be inquired into to determine if they are qualified to act as an interpreter.24 The interpreter must be able to give the court a word-for-word repetition of the witness's responses and not merely provide a summary of the answers because the witness must be competent to give answers and relied upon for those answers.25 In this way, like in People v. Guzman, where an American Sign Language interpreter testified she was able to understand the witness and communicate word-for-word what was said, they were not truly acting as an interpreter, merely as a tool of transmittal.26 The court held that the speech therapist was a qualified interpreter because she held a bachelor's degree in Communicative Disorders and Sciences, had extensively worked both in the academic and in the workplace with people with communicative difficulties, and testified that she was able to understand the witness and would communicate word-for-word what was said.27

In People v. Webb28 , a witness testified in front of a grand jury using facilitated communication. The court held that even though the process did not involve interpretation because there was no involvement of interpretation by a third party, the case law dealing with interpreters was helpful.29 Since the communication aid in this case relied upon scientific conclusion, the court held a hearing in limine was appropriate to determine if the technology met the Frye test. At this hearing, the party looking to support the witness's testimony would have the burden of showing the technology met the requirements of Frye.30 The purpose of this in limine hearing is not to determine the competence or credibility of the witness.31 The court held that since the technology did not appear to interpret or change the witness's testimony, rather to transmit it word-for-word, and the facilitator swore to communicate his answers without adding to, subtracting from, or changing them, the facilitated communication and use of a facilitator was appropriate.32

In Commonwealth v. Tavares,33 the Superior Court of Pennsylvania held that a witness with cerebral palsy could use a speak-and-spell communication device in court in order to testify. Under Pennsylvania law, "a court must look to three factors to determine the competency of a witness: 1) capacity to communicate, including an ability to understand questions and to frame and express intelligent answers; 2) mental capacity to observe and remember the occurrence; and 3) a consciousness of the duty to speak the truth."34 The court held that testifying in this manner was appropriate because even though his ability to communicate may be slower than that of the average person, it does not reflect his inability to understand the questions and frame answers.35

In In re. Luz P.,36 a child with autism and mental retardation used facilitated communication by spelling out words on a keyboard while a facilitator supported her hand to alert school officials to being sexually abused by parents. The court, citing Miller, held that the proper question in these cases is whether the interpreter or facilitator can effectively communicate with the witness and reliably convey the witness's answers to the court.37 The court held that this question could be answered through empirical proof.38 In this case, the approved method was asking questions without the presence of the facilitator and having the facilitator return to facilitate the answer.39 The court proceeded to a Frye test analysis to determine if this facilitated communication method was appropriate.

Facilitated communication or interpreters are often used and found statutorily for people who are deaf or for individuals who do not speak English.40 These statutes should be interpreted to encompass the facilitation of testimony by otherwise competent to testify individuals with physical disabilities. The qualification of an in-person communication facilitator to assist in testimony is necessary in order to ensure that the facilitator can understand the witness and relay the words of the witness exactly without adding, removing, or changing any words. The use of technology to facilitate in communication may require application of the Frye or Daubert tests.

Use of Leading Questions

In People v. Augustin, the court stated that the use of leading questions permitted in "special circumstances" required by the "interests of justice" authorized by state law can apply to individuals with physical disabilities.41 The court held this because it was the most efficient and least biased way of eliciting the testimony of the witness with the physical disability.42

In Jordan v. Hurley43 , the Court of Appeals applying state law held that the use of leading questions with a crime victim with Down Syndrome functioning at a very basic level was proper in spite of a state rule which forbid the use of leading questions except to develop testimony.44 The court pointed out that precedent held that the state of Ohio had permitted leading questions where the victim in tender years and since the victim functioned at a very basic level, leading questions were permitted.45 The court also pointed out that this is also the case in federal court.46

In Commonwealth v. Tavares47 , the court held that the use of leading questions with a victim who experienced difficulty in answering questions used a speak-and-spell [a communication device] was proper under state law.

In sum, the first purpose of this study was achieved. Based on the above analysis of federal and state law, people with LNFS are presumed competent to testify in court, at depositions, and in other court proceedings so long as they have the ability to communicate what they saw, that they perceived what they will testify to, whether they have the memory needed to recall and communicate what happened, and that they understand the implications of the oath. Just because they have difficulties communicating their testimony or do so slower than others doesn't exclude them from serving as a witness. They may so testify if the court finds that they can communicate effectively, although not without difficulty, so as that the trier of facts may understand their testimony. It is at the court's discretion to appoint an interpreter or speech-to-speech transmitter or use facilitated communication so as to allow the witness to testify. The courts are able to appoint an interpreter broadly construing the court's powers to allow individuals with communicative disabilities to participate in court proceedings. If the interpreter is a person, they must be properly examined to see if they are qualified to understand what the witness is saying and understand their duty to communicate the witness's words exactly without alteration, summation, or interpretation. If the facilitated communication is via communication technology, there may be a Frye or Daubert consideration in order to determine that the scientific technology employed is accurate and will communicate the witness's testimony accurately. Use of leading questions is proper in many jurisdictions when examining a person with a communicative difficulty on direct examination.

Outcomes of Actual Court Cases

In order to address the second purpose of this study, the 14 cases were analyzed (13 published cases found through NexisLexis and 1 personal experience). The criminal charges brought before the court were sexual assault or rape (13) and physical assault (1). The defendants were all known to the crime victim, all of whom had disabilities with concomitant communication difficulties. In each all of the cases, the defendant was found guilty. All but one of the convictions was appealed to a higher court based on one or more of the following legal standards: competence of the witness to stand trial, confrontation, hearsay, leading the witness, and ineffective assistance from council.

Competence to testify.

Eight of the 14 cases were challenged based on the notion that "lack of understandable spoken language" rendered the person incompetent to be a witness on their own account. However, all of the rulings noted that the inability to speak does not render a person incompetent. To hold otherwide would render a segment of society incompetent more because they cannot communicate as effectvely and in the same manner as those who can communicate through oral, written or signed language. As such, these cases set a legal precedent that if competence is challenged, a victim of a crime who does not speak can testify in court as long as he or she demonstrates "(1) the ability to understand the obligations of an oath; (2) an understanding of the consequence of false swearing; (3) the ability to receive and retain accurate impressions; and (4) the extent that the capacity exists to transmit to the fact finder a reasonable statement of what was seen, felt, or heard (Rules of Evid., Rule 601)."

Confrontation.

Seven of the 14 cases used the confrontation clause as a challenge. The 6th Amendment of the US Constitution states that "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him." It was argued that use of an interpreter, a speech-to-speech transmitter, or unintelligible/hard to understand speech violated the defendant's due process rights in that they could not effectively cross-examine the witness. None of these challenges were upheld on appeal. The courts ruled that (1) the court has an obligation to provide an interpreter if necessary; (2) the qualified interpreter or speech-to-speech transmitter must give word for word repitition of the witnesses' responses; and (3) cross-examination was invited. These 7 cases support the use of interpreters or speech-to-speech transmitters when the witness demonstrates need for one.

Leading the Witness.

Leading the witness is defined as asking a question during a trial or deposition that allegedly puts words in the mouth of the witness or suggests the answer. Leading questions may often be answerable with a yes or no. In 5 of the 14 cases, leading the witness was used by the defense attorney in challending the lower court's ruling. The defense in each case argued that the lawyer used yes/no questions when questioning the witness. However, the higher courts have ruled that where a witness is experiencing difficulty in answering questions as in the case of a victim who has limited or no functional speech, it is not an abuse of the discretion of the court to permit leading questions. Leading questions can also be used when it takes a long time to spell out a long sentence, noting that the court has the discretion to permit counsel to use leading questions requiring only short answers in the interest of time and to avoid confusion.

In the past, it has been the belief of many that a person with LNFS who must rely on answering yes/no questions posed by counsel is not likely to be a reliable witness in court. These 5 cases do not support this widely held erroneous belief.

Hearsay.

Another challenge that was made by defense attorneys in 3 of these cases was that the preprogrammed words and phrases of the Speech Generating Devices (SDG) used by the witness were hearsay and should be excluded. Additional challenges based on hearsay were that cross-examination did not occur and that the witness's statements were hearsay because the defendant was not given the opportunity of confrontation. Hearsay is the basic rule that testimony or documents which quote persons not in court are not admissible. Use of a computer — in these cases a computer designed with speech output — did not constitute hearsay since the victim chose from thousands of words or phrases programmed into the computer. In addition, cross-examination of the witness was invited.

Ineffective Counsel.

Ineffective assistance of counsel is defined as occurring when a client's lawyer does not devote full effort to the client, oftentimes due to a conflict of interest. Ineffective assitance of counsel denies a client of his 6th Amendment right to a lawyer as well as denying the defendant's 14th Amendment right to due process. In one of these cases, the defense used ineffective assistance of counsel as a challenge arguing that trial counsel failed to file post trial motions. In another case, it was argued that counsel failed to raise the question of competence of the witness before the the trial. The judges in both cases ruled against these challenges claiming that the charges failed to meet the two required elements of ineffective assistance of counsel. These two required elements are that (1) counsel's represetnation of the defendant was so seriously deficient that Counsel was not acting as a counsel and (2) counsel's performance, or lack thereof, prejudiced the defense so as to deprive the defendant of a fair trial.

Discussion and Conclusions

The findings of this analysis provide important lessons to victims of crime who have limited or not functional speech (LNFS), their allies, professionals who serve them, and the court system. Lessons relevant to each of these stakeholders are discussed below.

Based on the findings of these cases, courts do permit individuals with limited or no functional speech (LNFS) to testify in court if at all possible. The most important and possibly determinative step for making sure that an individual with a LNFS is able to testify is to alert the court of the likelihood of the person to testify and the reason it could be challenged in court as soon as possible. The capability of an individual to testify in court is a matter of law at the discretion of the court. If it were to be appealed on the basis that the testimony shouldn't have been allowed, the appellate court can only overturn the lower court if the judge abused his or her discretion — a very high legal standard to overcome where even if the appellate court judge thinks the lower court judge was wrong, he cannot overturn the ruling unless allowing the person to testify was also unreasonable. This is why it is extremely important to raise the issue with the court in a manner appropriate to the jurisdiction as soon as it is likely that the individual will testify. The court will likely research the law and precedent on this issue as well as any scholarly writing on the issue such as this article. Courts have large discretion in crafting proper remedies so as to provide for a trial which is fair and just and this includes setting the methods and manner of testimony.

The next step in ensuring that a person with LNFS is able to testify in court and his or her testimony is not to be excluded is to sufficiently prepare the witness. If the individual is using assistive technology, the lawyer representing the individual should go over all the questions which the individual will be asked and the individual should respond as they would in court. This will ensure that all words needed to testify are able to be given in court. If there are words that are missing, the lawyer should work in conjunction with the individual or their guardians to ensure that the individual will be able to use those words in court. If the individual is using an interpretor or a speech-to-speech transmitter in court, such as a qualified speech therapist, the lawyer must make clear to the therapist that they must provide a word-for-word recitation of exactly what the individual says. They are not allowed to reformat, rearrange, or supplement it even if they believe that is what the individual means or the person's answer seems incomplete. The judge and the jury will be evaluating the credibility of the witness and their ability to respond, not the ability of an interpreter to respond. If the interpreter does not exactly repeat what is being said, the judge may strike the testimony.

For an individual who is using facilitated communication in court, the judge should hold a session outside the presence of the jury in which the ability of the testifying individual to understand and respond to the questions, asked out of the presence of the facilitator, and then the answers are facilitated when the facilitator returns is tested.

For individuals with LNFS who will testify, preparation for testifying at trial is the most important aspect. The lawyer should review all questions that the individual should expect from their own lawyer as well as opposing counsel. The individual should have a full understanding of the proceedings of the court and what is expected of them. The family of the individual can assist to make sure that all questions of their own or the individual are answered by the lawyer.

Competence to testify differs by jurisdiction and not all jurisdictions have addressed the competence to testify of individuals with LNFS. The jurisdictions which have addressed the issue have looked to other non-binding jurisdictions to address each case. Individuals with LNFS are presumed competent to testify in court, at depositions, and in other court proceedings so long as they have the ability to communicate what they saw, that they perceived what they will testify to, whether they have the memory needed to recall and communicate what happened, and that they understand the implications of the oath. Just because they have difficulties communicating their testimony or do so slower than others with or without assistive technology doesn't exclude them from serving as a witness. They may so testify if the court finds that they can communicate effectively, although not without difficulty, so long as the trier of facts may understand their testimony. It is at the court's discretion to appoint an interpreter or use facilitated communication so as to allow the witness to testify. The courts are able to appoint an interpreter broadly construing the court's powers to allow individuals with LNFS to participate in court proceedings. If the interpreter is a person, they must be properly examined to see if they are qualified to understand what the witness is saying and understand their duty to communicate the witness's words exactly without alteration or interpretation. If the facilitated communication is via a communication device, there may be a Frye or Daubert consideration in order to determine that the scientific technology employed is accurate and will communicate the witness's testimony accurately. Use of leading questions is proper in many jurisdictions when examining a person with a communicative difficulty on direct examination.

In summary, based on the 14 legal cases analyzed for this article and the outcomes of their trials, victims with disabilities who have limited or no functional speech have the right to, and the support of legal precedents, to testify in court proceedings. While it is impossible to prevent being a victim of a crime, facing the alleged offender in court as a witness is one way of reducing the risk of continuing to be a victim of crime. Only then will people with limited or no functional speech begin to end the silence as victims of crime.

Works Cited

  • Borthwick, C. & Crossley, R. (1998). Gagged in the box — non-speech communication and the law. Paper presented at the Eighth Biennial ISAAC Conference, Dublin: ISAAC.
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Endnotes

  1. People v. Augustin, 112 Cal. App. 4th 444 (Cal. Ct. App. 2003).


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  2. Id., at 447.


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  3. Id., at 448.


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  4. Ibid.


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  5. Ibid (citing People v. Lewis, 26 Cal. 4th 334, 360 (Cal. Ct. App. 2001).


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  6. Id., at 448-49.


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  7. Lopez v. Meluzio, 2006 U.S. Dist. Lexis 93912 (E.D. N.Y. 2006).


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  8. Id., at 10.


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  9. Id., at 7-8 (citing United States v. Bloome, 773 F. Supp. 545, 546 (E.D.N.Y. 1991).


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  10. Id., at 12.


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  11. Ibid (citing United States v. Gerry, 515 F.2d 130 (2d Cir. 1975).


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  12. People v. Benn, 476 F.2d 1127 (D.C. Cir. 1973).


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  13. Id., at 1130.


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  14. People v. Miller, 530 N.Y.S.2d 490 (City Ct. Rochester Cty. 1988); Commonwealth v. Speicher, 393 A.2d 904 (Pa. Super. Ct. 1977); Commonwealth v. Tavares, 555 A.2d 199 (Pa. Super. Ct. 1989); Iness v. State of Texas, 606 S.W. 2d 306 (Tex. Crim. App. 1980).


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  15. People v. Augustin, 112 Cal. App. 4th at 450 (citing Cal. Evid. Code §701) (internal quotations omitted).


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  16. Ibid.


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  17. Id., at 451.


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  18. Ibid.


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  19. Ibid.


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  20. People v. Miller, 530 N.Y.S.2d 490 (City Ct. Rochester Cty. 1988).


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  21. Id., at 492.


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  22. Id., at 491 (internal citations omitted).


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  23. Id, at 492 (citing People v. Johnny P., 445 N.Y.S.2d 1007, at 1010 (N.Y. Crim. Ct. 1981).


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  24. Id, at 492.


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  25. Ibid.


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  26. Ibid.


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  27. Id., at 492-93.


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  28. People v. Webb, 597 N.Y.S.2d 565 (County Ct. New York 1993).


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  29. Id., at 568-69.


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  30. The Frye test has been since replaced by the Federal Rules of Evidence per Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) for determining the admissibility of expert testimony. This test focuses on whether the source of the testimony was based on knowledge scientific in nature, whether the testimony assist the trier of fact in understanding the evidence, and whether the testimony is sufficiently based on reliable reasoning or methodology. The effects of this ruling on the scope and purpose of the in limine hearing to determine the appropriateness of the particular assistive technology used to testify in court have not been addressed by any court that could be located.


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  31. Id., at 569.


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  32. The court distinguishes this case from two other cases because the facilitated statements were out-of-court statements which did not comport with the Frye test discussed above.


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  33. Commonwealth v. Tavares, 555 A.2d 199 (Pa. Super. Ct. 1989).


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  34. Id., at 204.


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  35. Ibid.


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  36. In re Luz P., 595 N.Y.S.2d 541 (N.Y. App. Div. 1993).


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  37. Id., at 544.


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  38. Ibid.


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  39. Ibid.


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  40. See People v. Catron, 532 N.Y.S.2d 589 (N.Y. App. Div. 1988); People v. Rodriguez, 546 N.Y.S.2d 769 (N.Y. Sup. Ct. Queens County 1989).


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  41. People v. Augustin, at 449.


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  42. Ibid.


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  43. Jordan v. Hurley, 397 F.3d 360 (6th Cir. 2005).


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  44. Id., at 363.


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  45. Ibid.


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  46. Ibid (citing United States v. Ajmal, 67 F.3d 12, 15-16 (2d Cir. 1995); United States v. Castro-Romero, 964 F.2d 942, 943-44 (9th Cir. 1992); United States v. Grey Bear, 883 F.2d 1382, 1393 (8th Cir. 1989); United States v. Goodlow, 105 F.3d 1203, 1207-08 (8th Cir. 1997)).


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  47. Commonwealth v. Tavares, at 204.


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