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Mass. Justices Won't Force Probes For Juror Language Bias

By Emma Cueto | May 12, 2019, 8:02 PM EDT

Massachusetts justices recently declined to require the screening of potential jurors for bias against non-English speakers in criminal cases where a defendant uses an interpreter.

Judges aren't required to probe potential jurors for bias against non-English speakers in criminal cases where a defendant uses an interpreter, the Massachusetts Supreme Court has ruled, though it urged judges to do so when asked.

Arsimendy Espinal, a Spanish-speaking naturalized citizen who was convicted of indecent assault of a minor in 2017, argued before the court that the judge at his trial should have included a question during jury selection aimed at identifying bias against people who don't speak English, claiming that anti-immigrant bias is common and that this prevented him from receiving a fair trial.

The high court, however, said in a decision on May 6 that the law does not support a blanket requirement on trial court judges to pose such a question in cases where the defendant uses an interpreter, and that it would not impose one.

"While we recognize that there may well be bias toward non-English speakers, and that a thorough voir dire is necessary to ensure an unbiased jury, in the circumstances here, we discern no abuse of discretion by the trial judge in declining to ask the requested question," the decision said.

But the court added that the evidence suggested judges should still try to root out bias in the jury pool against people who do not speak English when attorneys ask them to.

"We recognize the importance, in appropriate circumstances, of questioning the [prospective jurors], at least collectively, concerning language-related bias," the justices said.

They added, "Where the fact of a defendant's inability to speak English is reasonably likely to become known to the jury, we urge the trial judge to inquire, upon the request of the defendant, whether any prospective juror harbors bias toward non-English speakers."

The justices implied that attorneys looking to include such a question should provide trial court judges with some of the research that was presented to the high court, which has found that defendants who use interpreters are more likely to be convicted.

In Espinal's case, the court said, his attorney told the trial judge that "There's a lot of people that believe that if you're in this country and you don't speak English, that you've done something wrong." But the attorney did not provide any evidence to support this statement, the justices noted, and did not point to any cases where judges had decided to include such a question.

"On the limited information presented to the trial judge, therefore, we discern no abuse of discretion," the decision said.

Espinal was accused of giving the victim a glass of wine while his girlfriend, the girl's longtime babysitter, was in the bathroom. According to the girl, he then kissed her, and after she pushed away he asked to keep kissing her, which she refused to do.

Her father, who testified at trial using an interpreter, said that she also told him what happened immediately. Espinal has denied the allegations.

Espinal appealed his conviction on several grounds, including the question of whether the court should have screened jurors for against non-English speakers. He drew support from immigrant advocacy organizations, including three that filed a joint amicus brief on his behalf, who argued that it can be difficult for immigrants to receive a fair trial.

The high court, however, was skeptical during oral argument that it should impose a blanket requirement on all judges.

Several justices seemed concerned about the case's potential to open the door to questions on a wide variety of potential biases, from people who rely on government assistance to people who root for the New York Yankees.

Counsel for both parties did not respond to a request for comment.

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