The Sixth Amendment requires courts to provide reasonable accommodations to hearing-impaired defendants equal to the severity of their impairment, the U.S. Court of Appeals for the Second Circuit has held.
But addressing a case of first impression, the court also said, “perfection is not required by the Sixth Amendment” because it’s the defendant’s responsibility to tell the court about any impairment. If that doesn’t happen, a judge need only make those accommodations necessary to address a problem “that was, or reasonably should have been, clear or obvious.”
The circuit made those statements in United States v. Crandall, 12-3313-cr, where George Crandall claimed his Sixth Amendment rights were violated at his 2011 trial that ended with his conviction for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§922(g)(1) and 924(a)(2).
At a pretrial suppression hearing before Northern District Judge Frederick Scullin (See Profile) in March 2011, Crandall’s lawyer informed the judge his client had difficulty hearing despite having hearing aids. The judge instructed the testifying witness at the time to speak up, and no further complaints were heard from the defense.
At trial in June 2011, Scullin asked Crandall if a court-provided hearing device was working, and Crandall said it made “a fuzzy noise.”
The judge told him that turning the device off might actually improve things because the “acoustics here are good enough.” There were no further complaints from the defense after the judge instructed witnesses and trial participants to speak louder and made other adjustments in the courtroom.
Crandall was convicted on both counts on June 28, 2011, released on bail pending sentencing, and then ordered back into court for violating the terms of his presentence release.
During the bail revocation hearing, the judge told counsel that if Crandall had difficulty hearing, the defense should advise the court. After Crandall testified, the judge said that he “hears quite well.”
It was in advance of sentencing and at sentencing that Crandall claimed he could not hear during parts of his trial and the revocation hearing, saying, “Your honor, I couldn’t make out half of what you were sayin’.'”
After Crandall was sentenced to serve 33 months in prison, he applied to the Second Circuit, where his appeal was heard by Judges John Walker (See Profile), Jose Cabranes (See Profile) and Barrington Parker (See Profile) on Oct. 29, 2013.
Cabranes wrote the panel’s April 10 opinion, saying, “What the Sixth Amendment requires for those with hearing impairments is a matter of first impression for our court, although our jurisprudence regarding non-English speaking defendants provides considerable guidance.”
While reasonable accommodations must be made to a defendant, he said, “[T]he Sixth Amendment does not create an absolute right to the elimination of all difficulties or impairments that may hinder a criminal defendant’s capacity to perfectly comprehend, and participate in, court proceedings.”
The standard the court adopted, that, absent notice from the defense, a judge must make only those accommodations commensurate with a “clear or obvious” impairment, is consistent with the Court Interpreters Act, 28 U.S.C.§1827, the decision said.
“The statute clearly anticipates that the presiding judicial officer … is to determine whether an interpreter, including a sign-language interpreter … is warranted,” Cabranes wrote. “The judge’s inquiry is to be triggered either when a party or witness raises the issue, or when the judge ‘determines’ of his own volition that it should be raised.”
The court determined that, while Crandall at times may have not heard a particular question or statement, “there is considerable evidence that his hearing faculties were adequate, and appeared as such to the district judge.”
The accommodations made by district court, including asking for repetitions and instructing Crandall to move closer to the bench, “were adequate in light of what it knew or reasonably should have known,” the circuit found.
Paul Angiolotti of Staten Island represented Crandall. He declined to comment.
Southern District Assistant U.S. Attorney Paul Silver argued for the government.