My Ears Hear More Than English: Granting Multilingual Jurors Accommodations and Treating Multilingualism as a Common Type of Juror Expertise

INTRODUCTIONThe Court: [I]f you were to believe that the translators were not accurately translating what the witness might be saying, would you be able to base your decision on what the translator has said, or would you have problems with that?Prospective Juror # 2: It would depend on, you know, what was said. If, you know, the difference. I couldn't give you a specific yes-or-no answer.In 2011, in United States v. Cabrera-Beltran, the U.S. Court of Appeals for the Fourth Circuit held that Prospective Juror Number Two, along with two other Spanish-speaking jurors, was properly excluded "for cause."2 Multilingual3 prospective jurors, according to the Fourth Circuit, could be excluded if they had any doubts about their ability to ignore original Spanishlanguage evidence in favor of English-language interpretations or translations.4 In Cabrera-Beltran, prospective jurors were asked to accept Englishlanguage interpretations even if they believed that they heard mistakes in the interpretations.5Given that the defendant in Cabrera-Beltran was charged with the distribution of drugs, a crime carrying significant penalties, an egregious interpretation or translation error at trial could have had serious implications.6 Nevertheless, these jurors were asked during voir dire to discount all such future errors at trial before ever having heard any testimony and without knowing the nature and magnitude of any potential errors.7 Provided that a juror understands English, for-cause strikes in this situation can only impact multilingual jurors, as monolingual English-speakers would not be able to readily identify errors in interpretation.8This Note argues that for-cause strikes against multilingual jurors on the basis of their language skills are unjust and should not be upheld.9 Part I reviews the law regarding strikes of prospective jurors during voir dire, the treatment of foreign language evidence, and the permissible methods for jurors to ask questions during trial in some instances.10 Part II draws a comparison between expert jurors who are not subject to for-cause challenges on the basis of the expertise they possess and multilingual jurors who in some instances have been subject to for-cause challenges.11 Finally, Part III argues that courts should treat multilingual jurors similarly to other expert jurors and should not subject multilingual jurors to for-cause strikes out of fear or distrust.12I. PEREMPTORY STRIKES OF PROSPECTIVE JURORS: HOW RACE-BASED STRIKES BECAME PROHIBITED, WHILE LANGUAGE-BASED STRIKES ARE SOMETIMES STILL PERMITTEDUnderstanding how the Fourth Circuit came to allow the for-cause exclusions of multilingual jurors requires a background on race- and languagebased peremptory strikes and how jurors are normally expected to react to foreign language evidence.13 Section A reviews the basic elements of the jury selection process and strikes against prospective jurors.14 Section B discusses the 1986 decision in Batson v. Kentucky, where the U.S. Supreme Court articulated the standard for reviewing race-based peremptory strikes.15 Section C then explains the 1991 decision in Hernandez v. New York, where the U.S. Supreme Court attempted to provide clarity with respect to peremptory strikes against multilingual jurors.16 Section D focuses on how jurors should consider foreign language evidence at trial. Finally, Section E discusses how jurors with concerns about evidence are sometimes able to ask questions during trial.18A. Jury Selection and Voir DireJuries for federal trials are chosen by a complex system of rules partially governed by federal laws, but largely developed by local courts.19 The Jury Selection and Service Act of 1968 requires courts to create lists of prospective jurors, sourcing the names from lists of registered or actual voters, and to supplement the lists as needed from other sources. Although federal law establishes minimum requirements for eligibility for jury duty,21 the Jury Selection and Service Act requires each federal district court to devise its own plan for randomly selecting jury members. …