Episode 95 - Handling Deponents With Severe Speech Impediments

In this episode, Jim Garrity offers critical tips for preparing deponents who suffer from severe speech impediments. If left unaddressed, much of the deponent's testimony will be lost. It doesn't need to be that way, and Garrity offers a host of valuable practice tips to help litigators on both sides of this issue. This episode is based on the 13 reported court decisions in the show notes below. (And one more thing? Would you please go to our podcast, wherever you download it, and leave us a 5-star rating right now? That's a huge way to send us a thumbs-up for the insights and research we provide free in every episode. It means a lot to us, and won't take more than 30 seconds. Thanks in advance from our entire production team.)SHOW NOTESSmith v. State, 957 A. 2d 2 (S. Ct. Delaware 2008) (sexual battery conviction affirmed where victim, suffering from cerebral palsy, testified before trial with mother as interpreter, and at trial with assistance from expert speech pathologist who had worked with victim for six years); see also State v. Smith, 2019 WL 6194130 (Superior Court Delaware 2019) (petition for post-conviction relief denied where no evidence that use of interpreter rendered testimony inaccurate)Reed v. State, 287 S.E.2d 205 (Ga. 1982) (court allowed court reporter to function as “interpreter” for criminal defendant with speech impediment, and also instructed jury to raise hands if they did not understand defendant; conviction affirmed)State v. Holmes, 2012 WL 4086169 (Superior Ct. Delaware Aug. 22, 2012) (eyewitness to shooting suffered from expressive aphasia, and could not verbally articulate his answers, but could point and nod his head; held, this was sufficient to credit the testimony is reliable)State Farm Life Ins. Co v. Smith, 66 Ill. 2d 591 (Supreme Ct. Ill. 1977) (dissent sharply criticizing majority opinion for apparently discounting the qualitative value of an eyewitness’s testimony because of a severe speech impediment, seemingly equating the impediment with confusion and unreliability)In re Matter of Cohen, 2011 WL 2610663 (S. Ct. N. J. 2011) (courts decision to allow deponent to have his speech pathologist aid during deposition in translation of his testimony was harmless error, over objections that pathologist was not truly neutral and might interpret, rather than translate; excellent extended discussion of issue)Trammell v. State, 53 Ala. App. 246 (Ct. Crim. App. 1974) (criminal conviction affirmed despite objection that sole eyewitness to fatal stabbing had suffered a stroke, causing trial judge to allow witness to be interrogated by leading questions, with answers given mostly by negative or affirmative nods of the head)People v. Seel, 68 Ill. App. 3d 996 (App. Ct. Ill. 1979) (failure of defense counsel to adapt to speech limitations of key witness was as likely an explanation for contradictions in the witnesses testimony as possible dishonesty, saying that usual verbal pyrotechnics do not work with speech-impaired witnesses)McGee v. State, 383 So.2d 200 (Ct. Crim. App. Ala. 1979) (conviction affirmed where repeated references to “unintelligible testimony in trial transcript left appeals court unable to say that error was committed at trial)Gissendaner v. State, 54 Ala. App. 535 (Ct. Crim. App. Ala. 1975) (conviction reversed where state attempted to bolster testimony of speech-impaired witness out of concern that jury would discount witness’ testimony)Kissic v. State, 594 So.2d 227 (Ct. Crim. App. Ala. 1991) (conviction affirmed despite argument that trial court should not have allowed testimony from witness who speech impediment allegedly made testimony unintelligible and misleading; held, evidentiary objection was made only after testimony had concluded, and was thus waived)Parker v. State, 172 Ga. App. 540 (Ct. App. Ga. 1984) (conviction affirmed despite objections that prosecution was allowed to lead one of its witnesses, in light of witnesses testimony that he suffered from speech impediment)EFFYIS, Inc. v. Hottolink, Inc., 2020 WL 13157804 (E.D. Mich. June 10, 2020) (court allowed taxability of “check translator” retained to verify the translation of documents)http://www.voiceitt.com (example of speech-assistive devices “for people with non-standard speech”)http://www.aphasia.com (Lingraphica device website)