Hernández v. New York
(excerpts)

500 U.S. 352 (1991)


While racial discrimination in jury selection is a violation of the Equal Protection Clause, excluding bilingual jurors is not necessarily unconstitutional, according to the U.S. Supreme Court. The case involved Dionisio Hernández, convicted of attempted murder in Brooklyn, New York. At his trial the prosecutor had used peremptory challenges to disqualify bilingual jurors, citing their hesitation when asked whether they could disregard direct testimony in Spanish and heed only the English translation of the court interpreter. Hernández's lawyer protested that this was a ruse to keep Latinos off the jury who might be sympathetic to his client. But the trial judge accepted the prosecutor's "race-neutral" explanation. So did the Supreme Court, in a six-to-three decision, but not without some caveats. The same procedure might well be unconstitutional in other circumstances, the court said. While stopping short of declaring linguistic minorities to be a "suspect class," it noted the close relationship between language and national origin for purposes of equal protection analysis. Justice Anthony Kennedy delivered the majority opinion on May 28, 1991.

Petitioner argues that Spanish-language ability bears a close relation to ethnicity, and that, as a consequence, it violates the Equal Protection Clause to exercise a peremptory challenge on the ground that a Latino potential juror speaks Spanish. He points to the high correlation between Spanish-language ability and ethnicity in New York, where the case was tried. We need not address that argument here, for the prosecutor did not rely on language ability without more, but explained that the specific responses and the demeanor of the two individuals during voir dire caused him to doubt their ability to defer the official translation of Spanish-language testimony.<1>...

In the context of this trial, the prosecutor's frank admission that his ground for excusing these jurors related to their ability to speak and understand Spanish raised a plausible, though not a necessary, inference that language might be a pretext for what in fact were race-based peremptory challenges. This was not a case where by some rare coincidence a juror happened to speak the same language as a key witness, in a community where few others spoke that tongue. If it were, the explanation that the juror could have undue influence on jury deliberations might be accepted without concern that a racial generalization had come into play. But this trial took place in a community with a substantial Latino population, and petitioner and other interested parties were members of that ethnic group. It would be common knowledge in the locality that a significant percentage of the Latino population speaks fluent Spanish, and that many consider it their preferred language, the one chosen for personal communication, the one selected for speaking with the most precision and power, the one used to define the self.

The trial judge can consider these and other factors when deciding whether a prosecutor intended to discriminate. For example, though petitioner did not suggest the alternative to the trial court here, Spanish-speaking jurors could be permitted to advise the judge in a discreet way of any concerns with the translation during the course of trial. A prosecutor's persistence in the desire to exclude Spanish-speaking jurors despite this measure could be taken into account in determining whether to accept a race-neutral explanation for the challenge. ...

We discern no clear error in the state trial court's determination that the prosecutor did not discriminate on the basis of the ethnicity of Latino jurors. We have said that "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous."<2> The trial court took a permissible view of the evidence in crediting the prosecutor's explanation. Apart from the prosecutor's demeanor, which of course we have no opportunity to review, the court could have relied on the facts that the prosecutor defended his use of peremptory challenges without being asked to do so by the judge, that he did not know which jurors were Latinos, and that the ethnicity of the victims and prosecution witnesses tended to undercut any motive to exclude Latinos from the jury. Any of these factors could be taken as evidence of the prosecutor's sincerity. ...

Language permits an individual to express both a personal identity and membership in a community, and those who share a common language may interact in ways more intimate than those without this bond. Bilinguals, in a sense, inhabit two communities, and serve to bring them closer. Indeed, some scholarly comment suggests that people proficient in two languages may not at times think in one language to the exclusion of the other. The analogy is that of a high-hurdler, who combines the ability to sprint and to jump to accomplish a third feat with characteristics of its own, rather than two separate functions.<3> This is not to say that the cognitive processes and reactions of those who speak two languages are susceptible of easy generalization, for even the term "bilingual" does not describe a uniform category. It is a simple word for a more complex phenomenon with many distinct categories and subdivisions.

Our decision today does not imply that exclusion of bilinguals from jury service is wise, or even that it is constitutional in all cases. It is a harsh paradox that one may become proficient enough in English to participate in trial,<4> only to encounter disqualification because he knows a second language as well. As the Court observed in a somewhat related context: "Mere knowledge of [a foreign] language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable."<5>

Just as shared differences can serve to foster community, language differences can be a source of division. Language elicits a response from others, ranging from admiration and respect, to distance and alienation, to ridicule and scorn. Reactions of the latter type all too often result from or initiate racial hostility. In holding that a race-neutral reason for a peremptory challenge means a reason other than race, we do not resolve the more difficult question of the breadth with which the concept of race should be defined for equal protection purposes. We would face a quite different case if the prosecutor had justified his peremptory challenges with the explanation that he did not want Spanish-speaking jurors. It may well be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis.<6> And, as we make clear, a policy of striking down all who speak a given language, without regard to the particular circumstances of the trial or the individual responses of the jurors, may be found by the trial judge to be a pretext for racial discrimination. But that case is not before us.


1. Respondent cites United States v. Pérez, 658 F.2d 654 (9th Cir. 1981), which illustrates the sort of problems that may arise where a juror fails to accept the official translation of foreign-language testimony. In Pérez, the following interchange occurred:

    Dorothy Kim (Juror No. 8): Your Honor, is it proper to ask the interpreter a question? I'm uncertain about the word La Vado [sic]. You say that is a bar.

    The Court: The Court cannot permit jurors to ask questions directly. If you want to phrase your question to
    me

    Dorothy Kim: I understood it to be a restroom. I could better believe they would meet in a restroom rather than a public bar if he is undercover.

    The Court: These are matters for you to consider. If you have any misunderstanding of what the witness testified to, tell the Court now what you didn't understand and we'll place the

    Dorothy Kim: I understand the word La Vado [sic] I thought it meant restroom. She translates it as bar.

    Ms. Ianziti: In the first place, the jurors are not to listen to the Spanish but to the English. I am a certified court interpreter.

    Dorothy Kim: You're an idiot.

Upon further questioning, "the witness indicated that none of the conversations in issue occurred in the restroom." The juror later explained that she had said, "it's an idiom" rather than "you're an idiot," but she was nevertheless dismissed from the jury.

2. Anderson v. Bessemer City, 470 U.S. 564, 574 (1985).

3. François Grosjean, "The Bilingual As a Competent but Specific Speaker-Hearer," Journal of Multilingual and Multicultural Development 6 (1985): 467.

4. See, e.g., U.S.C. §1865(b)(2),(3) (English-language ability required for federal jury service).

5. Meyer v. Nebraska, 262 U.S. 390, 400 (1923).

6. Cf. Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926) (law prohibiting keeping business records in other than specified languages violated equal protection rights of Chinese businessmen); Meyer v. Nebraska (striking down law prohibiting grade schools from teaching languages other than English).