Jury instruction update: “Do you hear what I hear?”

Whether we are talking about a universal desire for peace as the 1962 song did,1 or a universal desire for the ability of all litigants to have meaningful access to justice, the importance of meaningful communication cannot be overlooked. Interpreting court proceedings for litigants and jurors should be one of the areas that the legal system stresses. Fortunately for all of us, the Supreme Court and its Access to Justice Commission have been addressing the needs of self-represented litigants, jurors and witnesses through policies, forms, articles, and new jury instructions.2 This article will discuss the 2017 changes made thus far to Illinois Pattern Jury Instruction for Civil Cases since the revisions focus on language access.

The first change is in IPI – Civil 1.07. Gone are the days when attorneys and judges may have excused a hearing-impaired juror. A truly representative jury panel should be able to accommodate adults with many disabilities. This instruction addresses the presence of an interpreter for a hearing-impaired juror and how an interpreter is an exception to the Jury Secrecy Act. (705 ILCS 315/1). The new instruction provides:

“1.07 Interpreter for a Hearing-Impaired Juror

One of the jurors in this case is hearing impaired and has the right to be accompanied by a court-appointed interpreter during the trial and deliberations. When addressing the hearing- impaired juror, you should speak directly to the juror, and not to the interpreter. Although the interpreter is not a juror, and you may not discuss the case with the interpreter, [he] [she] will keep strictly confidential all matters discussed during deliberations. If you have reason to believe that the interpreter is doing more than interpreting, let me know immediately by writing a note and giving it to the [clerk] [bailiff] [deputy].”

This instruction should be read to the courtroom at the start of the trial so that all present are clear that the interpreter is there to help the juror and will remain through deliberations but is NOT the juror. Plus, trial judges appreciate this instruction so that we can point it out to counsel as further support for the importance of including more individuals in juries so that the juries are truly representative of the community.

In making the above instruction number 1.07 in March of 2017, the prior 1.07 was moved to number 2.05. That newly-numbered instruction is worthy of review here as it deals with witnesses who have interpreters either because the witness is using sign language or a language other than English. It provides:

“2.05 Testimony through Interpreter

You are about to hear testimony from ______ who will be testifying in [language to be used] through the interpreter. You should give this testimony the same consideration you would give it had the witness testified in English.

Although some of you may know [language to be used], it is important that all jurors consider the same evidence. Therefore, you must accept the English translation of [his] [her] testimony.

If, however, you believe the interpreter translated incorrectly, let me know immediately by writing a note and giving it to the [clerk] [bailiff] [deputy]. You should not ask your question or make any comment about the translation in front of the other jurors, or otherwise share your question or concern with any of them. I will take steps to see if your question can be answered and any discrepancy can be addressed. If, however, after such efforts a discrepancy remains, you must rely only on the official English translation as provided by the interpreter.”

Obviously the court reads this instruction to the jury and others present before the witness testifies. And if a juror knows the language the witness is using, it is important that the juror understands he or she cannot translate for the other jurors. If the juror thinks the interpreter failed to interpret correctly, the juror needs to raise it at the time so that any problem can be resolved. As the court has adopted rules for certifying interpreters, the hope is erroneous translations will be less frequent or eliminated.

Communication is a two-way street. The Supreme Court is addressing the myriad ways that persons using court may fail to understand what is expected and what is happening. Plain language forms, assistance in courthouses and greater responsibilities placed on lawyers and judges are helping. The use of interpreters to bridge the communication gap aids everyone when language is a barrier to meaningful communication. Interpreters may be needed because of an individual with a hearing impairment or because of a witness who uses a language other than English. Whatever the reason, standardized jury instructions guarantee that the law and rules governing the use of interpreters are explained and all “hear” the same thing. 

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This article was originally published in the August issue of the ISBA's Civil Practice & Procedure newsletter. 

1. Song Released in November 1962. Composer Gloria Shayne Baker, Lyrics by Noel Regney. Written in response to the Cuban missile crisis, this song became a holiday hit urging “pray for peace people everywhere.”

2. Hopefully, everyone is aware that the court system has a monthly newsletter, Illinois Courts Connect. It started in April, 2017. The April issue outlined four programs dealing with access to justice. The June issue includes an article, “The Silent Injustice of Ineffective Interpreting and How Courts Can Prevent It” by Sophia Akbar. Go to www.illinoiscourts.gov under the Media tab to read the issues and sign up to receive them.