The Massachusetts Supreme Judicial Court recently decided a case in which a disabled crime victim was not allowed to testify.

Ruby McDonough has extreme difficulty with oral communication as the result of a stroke.  Citing this difficulty, the defendant filed a pretrial objection to preclude Ruby from testifying.

The judge ordered a hearing and appointed an expert to evaluate Ruby.  However, in a very ironic Catch-22, Ruby had to testify in support of her own competency as a witness without any interpretive assistance or accommodation.  Her family members were not allowed to provide assistance.

The court appointed expert stated that she was competent to testify, although specific communication methods would be necessary to question her.  The expert also said that Ruby’s testimony could be assisted by the timing of questions and the use of gestures and physical expressions.

The judge, however, felt that yes or no answers without any detail violated the defendant’s right of cross examination.  Although the prosecution filed an appeal of this ruling, it was not pursued for some reason.

Ruby filed a lawsuit arguing that the failure to accommodate her disability during her testimony violated her rights under the ADA and Massachusetts state law.  The Supreme Judicial Court held that there was no violation of Ruby’s rights since there is no right to testify until being called as a witness by either party.  At that point it is the party to the case, not the witness, who can appeal such a denial of accommodation.

This entry was posted on Thursday, October 28th, 2010 at 12:01 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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