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Excerpted From: Jasmine B. Gonzales Rose, Color-blind but Not Color-deaf: Accent Discrimination in Jury Selection, 44 New York University Review of Law and Social Change 309 (2020) (287 Footnotes) (Full Document)
On a New England autumn day, Ed Figueroa appeared for jury service at the Superior Court of New Britain, Connecticut. As a prospective juror, he was questioned about a variety of matters. He spoke enthusiastically about his career as a machinist, seven years in the union, and how much he enjoyed the varied demands of his work. He answered questions on a breadth of topics, including his experiences with law enforcement and the justice system, as well as his hobbies and family life. When asked his opinion on the most valuable trait to pass along to his children, he responded, to “be honest.” The voir dire questioning went on for more than twenty minutes and was not particularly remarkable, except in one respect: the judge was clearly uncomfortable with Figueroa's accent. This discomfort would ultimately result in his disqualification.
Despite the lack of any indication that the judge, prosecutor, defense counsel or court recorder had trouble understanding Figueroa (or the reverse), the judge inquired about his English language background. “If I can just interrupt for a moment? [Mr. Figueroa], English is not your first language, is it?” “No,” responded Figueroa, who identified as Puerto Rican. He explained to the judge that he understood English very well. After follow-up questions about his English language background, Figueroa told the judge he understood his point: he has an accent. The judge, apparently embarrassed by this realization, defensively interrupted him, saying, “No, no, I understand--I just want to--whenever anybody talks to me in an accent, and it's not just Spanish, I often inquire whether they can understand English well enough to be a juror. So, you're comfortable doing that and that's fine.” But, it was not fine.
After answering over 100 questions in English appropriately--without counsel or the court asking for clarification, without ellipses in the transcript for incomprehensible statements, without any suggestion that Figueroa's accent made him difficult to understand--the judge excused him for cause: on the grounds that his “significant language barrier” would prevent him from fully participating as a juror in the case. Although the trial judge conceded that Figueroa certainly understood English, and despite the fact that approximately 45% of the jurisdiction's residents are Latinx (the vast majority of whom are Puerto Rican like Figueroa), the trial judge determined that his language abilities would hinder his communication with other jurors. This is troubling because accent itself does not indicate a lack of comprehension or communicative ability.
The Connecticut Court of Appeals, in a case styled Connecticut v. Gould, would later find Figueroa's disqualification to be an abuse of discretion because there was no evidence in the record that he lacked the English language abilities needed to serve as a juror. Mr. Figueroa's disqualification from jury service was accent discrimination. As the trial judge excused Figueroa from jury service he told him, “[Y]ou've not been chosen as a juror. I don't want you to think any of your answers were inappropriate or wrong. It's just the way it worked out.” The judge was right--nothing Figueroa said was wrong. However, the way he pronounced it was wrong. He spoke with a Hispanic accent.
Figueroa was disqualified from jury service that day because he spoke with an accent associated with the largest racialized minority population in the United States: Latinxs. This discrimination on the basis of Hispanic accent was not treated as race, ethnicity, or national origin discrimination. Although the appellate court found that the excusal of Figueroa on the basis of his language abilities was unfounded and made in error, the court did not recognize that the excusal was discriminatory. As such, the court refused to grant the defendant a new trial. This reveals a shortcoming in our legal system. While it is impermissible to disqualify jurors because they look like racial minorities, it is too often assumed to be acceptable to disqualify jurors because they sound like racial minorities.
Judges' and attorneys' disregard for the fact that accent discrimination in jury selection often amounts to race, ethnic, and national origin discrimination is problematic for several reasons. Accent discrimination in jury selection often violates constitutional and statutory civil rights law. It prevents citizens from participating in the democratic self-governance function of jury service. Exclusion from jury service on the basis of accent relegates people of color that are perceived to be foreign, such as Latinxs, Asian Americans, Middle Eastern Americans, and--ironically--indigenous Americans, to second class citizenship based upon the way they speak or, more accurately, the way that they are heard. The resultant elimination of people of color from juries defeats our legal system's commitment that juries “be a body truly representative of the community.” When juries are not truly representative of the community, it delegitimizes the verdict and, in turn, the legal system as a whole. Unrepresentative juries present serious implications for criminal defendants and civil litigants, especially those of color. When judges and attorneys facilitate accent discrimination, they act on conscious and unconscious bias against racial, ethnic, and national origin minorities. This affects both the perceived and actual fairness of the courts.
Accent discrimination is just one form of racialized linguistic discrimination experienced in jury selection. Linguistic discrimination is the unfair treatment of interlocutors based upon their use of language. This includes the speaker's native language, multilingual ability, grammaticality, syntax, and accent. Linguistic discrimination has long been a primary, but largely ignored, method of subordinating Latinxs and other people of color (mis)associated with immigration. As Latinxs have become the largest racialized minority group in the United States, it is imperative that we evaluate our legal system's capacity to address racial discrimination against this group in particular. Further, as racialized xenophobia is on the rise, our legal system must confront the ways in which discrimination manifests against all Americans perceived as foreign. Linguicism seems to be escalating or at least becoming more visible to the general public. Rarely a week goes by without a national news story covering Latinx people being harassed for simply speaking Spanish in public. This should be a cause of great concern since the United States is home to the second largest population of Spanish-speakers in the world.
Accent discrimination in jury selection is not only an important issue in itself, but also a miner's canary for broader racial injustice. The examination of juror language disenfranchisement elucidates the gravity of problems caused by linguicism. It seeks to defeat the myth that language is merely a mutable race-neutral characteristic, undeserving of legal protection. The promise of assimilation and nativist rhetoric--that one can become fully American by learning English--is challenged by the reality that Latinxs and other people of color are too often barred from jury service on the basis of their language background, even when they are fluent in English.
The fact that perceived-to-be-foreign U.S. citizen Latinxs and other people of color along the entire spectrum of English language abilities can be excluded from jury service on the basis of their perceived English language abilities reveals structural problems with more than jury selection procedures. It reveals the need to take a more realistic view of contemporary race discrimination and the way language plays a role in racism. Judges, prosecutors, and defense counsel should not be able to supplant constitutional and statutory civil rights protections by simply couching their racial preferences or assumptions about who deserves to be full citizens as language concerns.
This Article builds upon my earlier work on “juror language disenfranchisement.” It moves beyond the experience of the approximately 13 million limited-English-proficient U.S. citizens who are denied the right to serve on a jury under English language requirements. It focuses on the many more millions of American citizens who are at risk of disqualification simply because they speak English with minority accents or are perceived as doing so. It also demonstrates the indirect benefits that fluent English-speaking racial minority prospective jurors could gain from juror language accommodation programs in courts.
Part II explores the relationship between accent, race, and racism. This provides a foundation for understanding how accent discrimination in jury selection can amount to racial, ethnic, and national origin discrimination. This exploration first examines sociolinguistic scholarship on accent discrimination through the lens of critical race theory. Central to this discussion is how accent discrimination implicates both conscious and unconscious bias. Part III examines how accent discrimination in jury selection violates constitutional and statutory law. The focus here is on Title VI of the Civil Rights Act of 1964; equal protection under the Fourteenth and Fifth Amendments; and the fair cross-section requirement of the Sixth Amendment. Part IV scrutinizes the structural implications of accent discrimination in jury selection. It situates accent discrimination into the broader problems of juror language disenfranchisement and racial subordination in U.S. courts. It examines linguistic discrimination in jury service, dispels the assimilation myth, and calls for remediation.
[. . .]
Juror language disenfranchisement bars millions of U.S. citizens of color from the jury box. Accent discrimination in jury selection is one of the most pernicious and unjustifiable forms of this exclusion. Yet, very few judges, lawyers, scholars, and others are even aware of this problem. The innate connection between accent, race, and racism is also overlooked. Accent discrimination in jury selection harms litigants, criminal defendants, prospective jurors, and the perceived and actual fairness and legitimacy of the courts. Juries are central to democratic self-governance and must be representative of the community. At a time in our nation's history when racism and xenophobia are increasingly blatant, there might be an inclination to let pass seemingly color-blind--or, more accurately, color-deaf--discrimination. Ultimately, racial discrimination by the ears is just as injurious and unjust as racial discrimination by the eyes. It is imperative that our legal system recognizes and remediates accent and all other forms of linguistic discrimination in the jury selection process.
Associate Professor of Law, University of Pittsburgh; Professor of Law, Boston University beginning July 1, 2020.
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