Whether a witness with a speech-related disability has the right to challenge her exclusion as a witness during trial; whether the judge properly excluded her testimony for inability to give narrative answers.

The appellant is the alleged victim in the criminal trial of Kofi Agana. The alleged victim suffers from expressive aphasia, a condition that permits her to understand language, but to speak and write only with great difficulty. She communicates largely through the words “yes” and “no,” and through gestures. Using these means, she alleged that the defendant sexually assaulted her.

The judge appointed an expert examiner who reported that the alleged victim was mentally competent, and was understandable so long as questions were phrased to her in yes or no form. The judge then held a live competency hearing, in which the defense attorney examined her for over an hour.  The attorney asked a series of questions calling for narrative answers, which the witness was unable to answer. The judge ruled that she was not competent to testify, apparently largely on the ground that she was unable to provide narrative answers, and that her yes or no answers to some of the questions resulted in confusion.

The witness sought interlocutory review of the judge’s ruling from the single justice, pursuant to G.L. c. 211, § 3, claiming that the Americans with Disabilities Act (“ADA”) requires the judge to make reasonable accommodations for her disability, and that she could testify competently with accomodations. Such accommodations would apparently include permission for the prosecutor to ask leading questions in direct testimony, and an interpreter or facilitator who could interpret questions and her answers. A single justice reserved and reported the case to the full court.

1. Availability of relief. The preliminary procedural question is whether the witness has standing to bring this challenge. In general, it is a “fundamental principle” that “the victim of a crime does not have a judicially cognizable interest in the prosecution of another.” Hagen v. Commonwealth, 437 Mass. 374, 380 (2002). Thus it is the state, rather than the alleged victim, that generally has standing to appeal from exclusion of a victim’s testimony. The witness argues, however, that she is seeking to assert not her rights as a victim, but as a disabled person; because double jeopardy would bar retrial, she is unable to vindicate her rights to reasonable accommodation under the ADA, other than through interlocutory review.
2. Feasibility of reasonable accommodations. The substantive question is whether the witness would be competent to testify, given reasonable accommodations. It is well settled that a physically disabled witness has a right to accommodations to be able to enter the court room, and that a witness who does not speak English may use an interpreter. In this case, however, the requested accommodation is a different kind of evidence, in which the witness answers yes or no questions rather than using her own words. The judge ruled that such questions amounted to leading the witness, and were impermissible. The witness argues that competency to testify does not require the ability to give narrative answers, but expressive answers, see Mass. G. Evid. § 601(b), and that leading questions are permissible where necessary, such as with child or elderly witnesses, see Mass. G. Evid. § 611(c) & note.

There are powerful principles at stake here: on the one hand, a woman has been declared mentally competent by an independent physician, and consistently alleges that she has been sexually assaulted, but is not permitted to bring her accusation to court. On the other hand, if she is permitted to testify, the defendant’s attorney will not be able to directly challenge his accuser, but instead will have the form of his questions and their answers filtered through a third party interpreter. (Understandably, but troublingly, the witness offered a family member as interpreter at the hearing — hardly a neutral party).

As general principles, the witness’s arguments seem sound: she has an important statutory right to reasonable accommodations, distinct from the rights occasionally asserted and rejected by victims, and she will be unable to vindicate that right other than through interlocutory review. However, it is ultimately up to the trial judge, not the SJC, to ensure that the witness rather than the interpreter would be the one testifying. In this case, a fair result might be to remand the case to the trial judge with instructions to hold a hearing with a translator, and make findings as to the fairness of such an accommodation to the defendant.

Going forward, the amici National Aphasia Association, et al., suggest that Massachusetts should adopt judicial guidelines for evaluation of disability accommodations, as other states have. While their proposed guidelines seem appropriate, the Court is likely to refer the suggestion to a judicial committee, rather than explicitly adopt it via the decision in this case.