This week the Ohio Supreme Court in State v. Speer overturned a defendant's guilty verdict for aggravated vehicular homicide because the trial judge failed to remove a hearing impaired juror for cause.
The Speer case arose from a boating incident in which a passenger in the defendant's boat died. One crucial aspect of the case was a taped 911 call made by the defendant immediately after the incident. Due to the importance of the call to the defendant's case, the defendant asked the trial judge during voir dire to strike a hearing impaired juror for cause. The trial court refused and instead attempted to accommodate the juror's impairment. The trial judge permitted her to sit where she could see the faces and read the lips of the witnesses. In addition, the court provided her real-time transcription of the court reporter's audio tape to include the 911 call.
While the Ohio Supreme Court applauded the trial court's efforts to make jury service as inclusive as possible, it nevertheless overturned the defendant's guilty verdict. The Ohio Supreme Court stated that “[d]espite the efforts of the trial court to accommodate Leow-Johannsen [the juror], Speer did not receive a fair trial. Regrettably, the accommodation made by the trial court in this instance could not help Leow-Johannsen to effectively perceive or evaluate Speer’s demeanor, detect any slurred speech or the lack of it, or consider the loudness or softness of his voice, the patterns of his speech, his tone – whether excited, calm, or passive – or the inflections of the voices on the 9-1-1 tape."
In the Speer opinion, the Ohio Supreme Court also included several principles to consider when empanelling future jurors with impairments.
- In deciding a challenge for cause to a prospective juror on the basis of a physical impairment, the court must determine, in light of the specific evidence to be presented, whether any reasonable and effective accommodation can be made to enable the juror to serve. In making that determination, the court must balance the public interest in equal access to jury service against the right of the accused to a fair trial, the latter being the predominant concern of the court.
- The right to a fair trial requires that all members of the jury have the ability to understand all of the evidence presented, to evaluate that evidence in a rational manner, to communicate effectively with other jurors during deliberations, and to comprehend the applicable legal principles as instructed by the court. An accommodation made to enable a physically impaired individual to serve as a juror must afford the accused a fair trial.
- A hearing impairment by itself does not render a prospective juror incompetent to serve on a jury, but when the accommodation afforded by the court fails to enable the juror to perceive and evaluate the evidence, the accused is deprived of a fair trial. To avoid such situations, a trial court must determine whether reasonable accommodations will enable an impaired juror to perceive and evaluate all relevant and material evidence, and when no such accommodation exists, the court must excuse the juror for cause.