5. Do you…solemnly swear that you will
diligently, fully and impartially inquire into
and true presentment make of all
offenses which shall come to your
knowledge…that you will present no one
from hatred or malice nor leave anyone
unpresented from fear, favor, affection,
reward, or hope of reward; that you will
…perform all the duties enjoined upon
you…?
6. Crimes of not understanding
•
•
•
•
•
failure to appear
breach of conditions
breach of a probation
being unlawfully at large
failure to comply
8. Sources of Cognitive Deficiencies
or Poor Comprehension
•
•
•
•
•
•
•
low education
medical conditions
old age
disabilities
learning difficulties
discrimination
conditions of poverty
• mental handicaps
• degenerative
conditions
• epilepsy
• vision problems
• AIDS
• head/neck injuries
9. Gap Between Cognitive Demands
and Cognitive Ability Level
Level 1
Level 2
Level 3
Level 4/5
22%
26%
33%
16/4%
• Explicit
• Concrete ← Low
• Simple
Text Inferences
• Single task
• Low volume
High →
• Implicit
• Abstract
• Complex
• Multiple tasks
• High volume
10. Low Reading Skills
– Invisible Hurdle
• Proficient readers
• Have adequate reading skills for daily
life but not for new and complex info
• Can read simple sentences on familiar
topics if clearly laid-out
• Cannot read or recognizes words only
15. Incomprehensible Language
Oath for child of 7 to 13 years
Do you know that it is a criminal
offence to intentionally give false
evidence in a judicial proceeding?
And do you solemnly promise to tell
the truth in this proceeding?
18. Canadian Charter of Rights
Charter…requires
communication of the right,
not a rote repetition of it.
Regina vs Evans
Supreme Court of Canada
[1991] 1 S.C.R. 869
19. Legal Literacy
1. Ability to read
complex material
in specialized
language
2. Familiarity with
legal context
13%, scoring 340 to 500 in IALLSCanadian: 1 in 5, scoring 324+A person may be well-educated and able to read complex information in their own area of expertise. Still, they may have trouble reading legal information.
US has 10 million misdemeanor cases each year. 92% are charged by prosecutor based on police accusation without review of the circumstances. Most people will plead guilty to get out of jail or to get it over with, without appreciating the effect.“The repercussions of a petty conviction can be anything but minor. These offenses are increasingly punished with hefty fines that low-income defendants cannot pay. A conviction of any kind can ruin a person’s job prospects. A petty conviction can affect eligibility for professional licenses, child custody, food stamps, student loans, and health care or lead to deportation. In many cities, a misdemeanor makes you ineligible for public housing.”Why Misdemeanors Aren’t So MinorHOME / JURISPRUDENCE : THE LAW, LAWYERS, AND THE COURT.Too often the criminal justice system is pronouncing people guilty without evidence, lawyers, or a chance to plead their case.By Alexandra Natapoff|Posted Friday, April 27, 2012, at 11:33 AM EThttp://www.slate.com/articles/news_and_politics/jurisprudence/2012/04/misdemeanors_can_have_major_consequences_for_the_people_charged_.htmlIn Canada, most people get out on bail or with supervision within 24 hours. But there is a complication for us: about __% of charges laid are what we call administrative charges-failing to turn up for a fingerprinting appointment, failing to turn for a court hearing to set a trial date, failing to appear for the trial. Thus they become multiple offenders, sometimes because they can’t make any sense out of the notices they receive.
A witness or crime victim who is intimidated by all this may hesitate to call police at all. For their part, police may be frustrated by someone with low literacy skills who seems to be causing delays when asked to read or write something. If the person refuses to cooperate at all, and if the officer is not sensitive to the problem of low literacy, the whole process may fall apart. When people with cognitive or reading deficiencies appear in court as witnesses, they may “talk in circles.” This can be a sign of the thinking patterns that characterize low literacy. Their inability to “get their story straight” may mean that a guilty person will be set free.
Oath of grand juror in the District of Columbiahttp://ewriteonline.com/writing-matters/2012/01/your-honor-could-you-repeat-that-in-plain-language/Do you and each of you as members of the grand jury for the District of Columbia solemnly swear that you will diligently, fully and impartially inquire into and true presentment make of all offenses which shall come to your knowledge and of which the superior court of the District of Columbia has cognizance: that you will present no one from hatred or malice nor leave anyone unpresented from fear, favor, affection, reward, or hope of reward; that you will keep secret everything said, discussed, or viewed in the grand jury room and that you will to the best of your ability perform all the duties enjoined upon you, so help you God?
In Canada, most people get out on bail or with supervision within 24 hours. But about a third of charges laid are administrative charges like these. They become multiple offenders, sometimes because they can’t make any sense out of the notices they receive.One lawyer told of a client who had one substantive charge against him and 20 warrants for breach of conditions.Defence counsel may not be aware that the accused does not understand the situation.In order for an accused person to be informed of his rights, it is necessary that the accused be capable of understanding and appreciating the substance of the right to counsel and truly appreciating the consequences of giving up that right.[ii]
Situational: Feeling intimidated by a person, or fearful in a particular situation, highly agitated or stressed, traumatic eventPeople in a highly-stressed state will not ask for nor expect instruction from you in the legal process. Systemic: Systemic discrimination arises from any consistent practice or standard:• that has a negative result for a group of people because it does not allow for their particularcharacteristics, and• when an adjustment could be made without undue hardship to the organizationPlain Language forms and documents will helpto overcome an important type of “systemic discrimination” within the justice system. This discrimination is based on the fact that the justice system requires people to read and understand complex information written in unfamiliar legal language.
Short-term reading problems:Adults may lose some of their literacy skills temporarily. This temporary decrease in reading ability can be caused by:• Lack of practice – people who haven’t used their literacy skills recently may become rusty• Stress because of family, personal, or work-related problems• Fear, such as fear related to legal difficultiesAny of these causes can interfere with a person’s capacity to focus, concentrate, process information, and think clearly.If you do ask questions like: Do you understand, Can you read, they will likely say yes. There is both a denial mechanism at work for people with low literacy, and an embarrassment factor that keeps people from saying they do not understand.
Above are international definitionsThe leading international study to date is the Adult Literacy and Life Skills Survey (ALL) of 2003,. The ALL, which built on the 1994 International Adult Literacy Survey (IALS), places individuals in one of five levels of literacy. The general definition of literacy used by both the ALL and the IALS – "... the ability to understand and use printed information in daily activities at home, at work and in the community, to achieve one's goals, and to develop one's knowledge and potential“.
English-speaking, 16 years and older, living in households or prisons, without mental disabilities.Source: US Dept of Educ, Institute of Educ Sciences, Natl Ctr or Educ Statistics, 1992 National Adult Literacy Survey and 2003 National Assessment of Adult LiteracyAnother 11 million are actually illiterate in EnglishU.S. new policy levelsBelow Basic:no more than the most simple and concrete literacy skillsBasic:can perform simple and everyday literacy activitiesIntermediate:can perform moderately challenging literacy activitiesProficient: (over 340)can perform complex and challenging literacy activities
This is about more than poor reading skills. It’s also about not understanding. And it is about having different thinking strategies and problem-solving approaches.The legal system is structured, hierarchical, rigid, and rule-bound. Many people cannot even understand how this can work.Plain Language is needed in criminal justice for theproper functioning of the justice system,efficiency of court processes,fundamental right to a fair trial,fairness to victims and witnessessuccess of prosecutions,prevention of risk and losses to police organizations.
Juvenile Promise to Appear, bilingual
An old proposal to simplify and oath for child between from 7 to 13Since 2005, children need only promise to tell the truth.
Merinda EpsteinThe law is, perhaps, the most important example of how words affect peoples lives. There is truth in the proposition that if we cannot understand our rights, we have no rights. R. v. Evans The Honourable Beverley McLachlinGlobal Trends on the Right to Information” compiled by the Human Rights organization Article 19. The report makes a number of recommendations for governments, civil society, and businesses among which are the following (Article 19, 2001, 155-157): “The right to access public information about one’s economic, social and cultural rights is not only related to these rights – it is a precondition for their realization. Without information about the scope and content of their rights to health, housing or work, citizens are unable to determine whether their rights are being respected.” (Article 19, 2007, p. 18). http://www.article19.org/resources.php?lang=en
A [minimally good human life]* is not possible without access to a rich array of expressions and to knowledge for both practical ends and intrinsic benefits to the human spirit. Guaranteed by countries that sign treatyPeople have a right to access information, to access quality information. Information quality includes accuracy, completeness, currency, and comprehensibility (Fox 1994)….Meeting the right to access information requires that we consider in what format the information will be most comprehensible to the people who need it… The “knowledge interest” is the “fundamental interest in securing reliable information about the conditions required for pursuing one’s aims and aspirations” (229). Without access to such knowledge, individuals and groups will be unable to effectively carry out their aims.International: A UNESCO treaty says Article 7.All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.Article 10.Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.Article 11.(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
R. v. Evans13 a decision of the Supreme Court of Canada in 1991, Madam Justice Beverley McLachlin The appeal to the Supreme Court came after a youth with lower than normal mental capacity was convicted of first degree murder in the brutal killings of two women. When the youth had originally been arrested, he was told he had the right to counsel. When the police asked him if he understood this right, he said he did not understand what the right to counsel entailed, but the police failed to explain the right to him, and he declined counsel. In addition, the youth was originally arrested on a marijuana charge since the police believed that his brother had committed the murders. When the youth became the prime suspect in the two murders, the police did not formally advise him that he was then being held for murder nor did they reiterate his right to counsel.This case clearly connected the right to understand to the right to a fair trial. It established the principle that a message has not been communicated unless the person receiving the message understands it.
Financial, Health, MediaRe Police Warning: In order for an accused person to be informed of his or her rights, it is necessary that the accusedbe capable of:• understanding and appreciating the substance of the right to counsel, and• truly appreciating the consequences of giving up that right.Test of communication:Evidence must show that the accusedWas informed of rightsUnderstand those rightsIncluding why, when, howTest not met if detainee showsLack of understandingSpecial circumstances:Any limitationAny conditionCommunication blockLack of capacity
Literacy and the Courts, Katherine AltenederAlaska Justice Forum > 24(2), Summer 2007http://justice.uaa.alaska.edu/forum/24/2summer2007/a_literacycourts.html65% of those entering prison in North America have low literacy. In the U.S., it stays that way. In Canada in past 20 years basic education has been delivered in prisons. Now the rate of functional literacy at release is 65%. So only, 35% leave prison with low literacy. Canada sees literacy training as crime prevention measure. And it is the best tool for keeping people out of prison.Other examples of systemic discrimination in the justice system include:• The duty counsel, probation offi cer, and defence counsel cannot take time to learn that someone has low literacy skills.• The pre-sentence report seldom identifies low literacy as the underlying problem behind a person’s social problems, poverty, lack of employment, etc.• The defence arguments presented in court may not identify how low literacy and lack of understanding of the situation led to the charges.• Meaningful rehabilitation is diffi cult since most treatment programs are based on books, written instruction, and reading.If put on probation, people with literacy problems often have trouble finding the conditions in their Probation Orders, which can result in breaches and further charges.
From Reading the Legal World:People using the legal system must be able to guide themselves through a process that they understand [...] and, at appropriate places along the way, recognize they have a legal right or responsibility, in order to exercise or assume it; recognize when a problem or conflict is a legal conflict and when a legal solution is available; know how to take the necessary action to avoid problems and where this is not possible, how to help themselves appropriately; know how and where to find information on the law, and be able to find information that is accessible to them, know when and how to obtain suitable legal assistance; have confidence that the legal system will provide a remedy, and understand the process clearly enough to perceive that justice has been done...
