Legal Research

Defendants With Minimal Language Skills

By Simon Fodden

There’s an interesting post over at Language Log, “Language skills and the law” by Mark Liberman, that sets a conundrum a bit like those strange criminal law exam questions profs are supposed to love. In this case, set out by the Philadelphia Inquirer, the issue involves a person arrested for smuggling a large quantity of drugs from Mexico into the United States as a “mule” for a well-known gang. The problem with what would otherwise be a sad but routine matter is that the defendant has minimal language skills: he is profoundly hearing impaired and seems never to have learned a standard method of communicating, i.e. a language. This means, of course, that he is unable to instruct counsel, unable, in effect, to participate in his trial.

There is a good deal of speculation in the original article and in the comments to the Language Log piece that the defendant may be disguising some ability to communicate with other than “home signing,” an idiosyncratic system he may have used within his family of origin. But the interesting question arises from the contrary assumption: what should the law do with a person who has minimal or no language skills?

Curiously, to me, many of the comments suggest committing the defendant to a mental health facility as an alternative to conducting a criminal trial in this case. And few if any of the commenters seem settled on a solution that simply says he is not able to be tried.

This is an extreme and rare case, one supposes; but it is on a spectrum or two of fundamental fairness issues, such as the trial of foreign language speakers or the trial of persons with reasoning or other mental difficulties.

Is there really a problem here, then? Do others see any real alternatives to finding that the law is inapplicable here?

Full post as published by Slaw.ca on January 14, 2011 (boomark / email).