Accommodating the Communication Disability Associated with Aphasia in the Courtroom
by Marjorie Nicholas on March 16, 2011
Many people in the aphasia community have heard about the case of a Massachusetts woman with aphasia who had to fight a battle to testify in a court case filed against a certified nursing assistant she had accused of assaulting her in her living facility. An earlier posting related to this case can be found at: “National Aphasia Association Update on the Case of Ruby McDonough”.
As stated in the earlier post: “The judge essentially ruled that because the basis for the earlier decision on competency had failed to recognize Ruby’s capacity to testify with accommodations, she had a right to take the stand at trial and utilize all reasonable accommodations to facilitate her communications as a witness against her assailant.”
Last week on March 10th the trial began and concluded the following day. Ms. McDonough was able to testify in the courtroom and pointed out the defendant as the man who had assaulted her. She was asked a number of questions by the attorneys from both sides. The trial was a bench trial which means that the judge and not a jury determined the outcome of the case. After listening to all of the cross-examination of witnesses and the arguments of both sides, the judge found the defendant not guilty.
I was at the trial and in this posting I would like to address some of the issues I see as important to accommodating those with aphasia in a courtroom. I was asked by Marian Ryan to assist in the case by conducting an evaluation of Ms. McDonough and I was also called as a witness to testify about the disability of aphasia itself.Before the trial began, attorneys from both sides asked me questions about aphasia and about what kinds of accommodations I thought might be useful in the case. Just as every case of aphasia is unique, so are the accommodations required unique to each. Unfortunately there is no simple way to provide an aphasia-translator in the courtroom. Some people will need assistance in expressing themselves in the courtroom, some will need assistance in understanding the language used in the courtroom and many PWA will need assistance with both. The first step therefore in each case must be a thorough assessment of the communication abilities of the PWA, so that person-specific accommodations can be determined.
In this case, it was argued to the judge that Ms. McDonough should not be required to answer open-ended questions such as “Where were you living?” but rather she should be given questions requiring only a “yes” or “no” answer.
For a PWA who has relatively intact auditory comprehension, this may be a good solution. However, what should be done for those who have significant problems understanding spoken language? In clinical practice we try to accommodate this disability by using multi-modality input (gesturing, pointing to pictures, writing down key words) to accompany our spoken words. Sometimes we also use extra verbal context to set up a topic, e.g. “Now I will ask you questions about your job? (pause). Did you work in an office?” However, in a courtroom, some of these accommodations may be considered to be “leading the witness” and may not be allowed. Furthermore, some questions just cannot easily be translated into other multi-modality means of expression, without in some way altering the content. This is a dilemma that does not have an easy solution.
Also in clinical practice, when we ask yes/no questions we often ask them in pairs and only when both are correctly answered are we certain that the PWA understood the questions. The reason for this is that people have a 50% chance of responding correctly to a single Yes or No question. In a courtroom should the accommodation allowing yes/no questions also require that they be presented in pairs?
Furthermore, should all of the attorneys have to equally abide by the same accommodations? In the trial last week, this is not what happened. The assistant district attorney used pictures and a series of yes/no questions in her questioning of Ms. McDonough. She stayed away from asking open-ended questions because she knew these would be difficult for her. She also allowed Ms. McDonough to use gestures to express herself.
But when the defense attorney questioned Ms. McDonough he did not use these accommodations and in fact asked her many open-ended questions. When he did ask her yes/no questions he often asked them in such a way as to lead her to give a “Yes” response, by nodding his head in the affirmative and ending his question with “…. yes?” This part of the trial succeeded only in demonstrating to all in the courtroom that, in fact, Ms. McDonough did have aphasia!
Since PWA may produce words in error, what we call paraphasias, it is also important that the court recognize that these errors are not intentionally produced to be misleading, nor should they be over interpreted as intended answers. This became an issue in the trial when earlier testimony was recounted that contained words Ms. McDonough had said in attempting to talk about the person she claimed had assaulted her. Because she was not able to say the name correctly, the defense attorney tried to make it seem she had named someone else. I felt it was likely she had merely made a paraphasic error in saying the name.
For a PWA, a much better way get this information across is to show a set of pictures and have her point to the picture of the person she meant to talk about, rather than requiring her to respond verbally, and, as happened in this case, using her own verbal response against her in subsequent testimony.
While the outcome of this trial was not as she would have hoped, Ms. McDonough was pleased to have the opportunity to present her testimony. There were many other individuals in court, including the judge, who hopefully learned something about aphasia that will benefit the next PWA in the courtroom. It will be a struggle, but one that is certainly worth it, to determine the exact accommodations and make them available in the courtroom for each person with aphasia.