Lewinson v. Crews

Hopkins, J. (dissenting).

The qualifications of a juror are defined in the statute (Judiciary Law, § 596), and the court below held, and the respondent here urges, that as County Clerk he has an administrative discretion in enforcing the standard in individual cases. I do not so construe the statute. If the citizen meets the standard, the County Clerk ■ may not reject him for jury duty (cf. Matter of Ford v. O’Byrne, 222 App. Div. 50). Here the facts are not in dispute, and the respondent cannot apply the statute to debar the petitioner from jury service, unless a judicial construction of the statute justifies the exclusion. In this view of the power of the respondent I take it the majority agrees: our division rests, on the meaning of the statute vis-a-vis a blind citizen.

A citizen is guaranteed certain privileges and immunities (U. S. Const., art. IV, § 2; 14th Amdt. N. Y. Const., art. I, § 1). Traditionally, the right and duty to serve as a juror has been accounted to be a privilege of citizenship (cf. Civil Rights Law, § 13). Correlatively, all persons, whether citizens or aliens, are entitled to a trial by jury composed of citizens representing a broad spectrum of the community. A statute, which, either by definition or by administrative enforcement, prevents' jury service by a large segment of the population violates tin constitutional guarantees (Hernandez v. Texas, 347 U. S. 475, 482; Strauder v. West Virginia, 100 U. S. 303, 308).

*115The blind is a large segment of our population.1 A statute which by its definition of qualifications of jurors denies to the blind the right of jury service should do so in unmistakable terms; and the discrimination must be based on rational grounds. But our statute does not single out blindness as a ground of disqualification, as it does felons or the nonpropertied. In order to deprive the blind citizen of the right to be a juror, the majority finds an implicit disqualification in the words of the statute that a juror must “ be in the possession of his natural faculties and not infirm or decrepit.” Certainly, a blind person is not infirm or decrepit, and I think that in the context of the statute he is in the possession of his natural faculties. The statute must be considered in the light of the constitutional purpose to diffuse the right and duty of jury service throughout the whole citizenry. The ability to serve effectively as a juror must be the point of the statute; and the possession of intellectual power to discharge the duty is the meaning of the term 1 ‘ natural faculties ’ ’ which the statute employs.

The words of the statute (“ in the possession of [his] natural faculties, and not infirm or decrepit ”) are found in the Revised Statutes of 1829. (Rev. Stat., part III, ch. VII, tit. IV, § 13, subd. 4). That the words applied to intellectual capacity is evident from a following provision in the same chapter and title (§ 33): “ The court shall discharge any person from serving on a jury, in the following cases: * * *

“ 2. When it shall appear that such person is under twenty-one years of age, or over sixty years of age; or that he is not in possession of any of his rational faculties ”.

*116Thus, the statute equated decrepitude and infirmity with a given age, and natural faculties with rational faculties.2 It is notable that the present authority of the court to discharge a juror is not as specific and speaks in general terms (Judiciary Law, § 605; see comment, Sixth Annual Report of N. Y. Judicial Council, 1940, p. 212). The retention of the language of the Revised Statutes signifies an intention to continue the original meaning (People ex rel. Van Riper v. New York Catholic Protectory, 106 N. Y. 604, 613; Buduson v. Curtis, 285 App. Div. 517, affd. 309 N. Y. 879). The right of jury..service, then, unless . limited by a clear direction, reposes in all citizens; the litigants may, of course, exercise their power of selection at the voir dire. A litigant might well favor the acceptance of a blind juror to serve in his case, despite the physical handicap.

The ability of the blind to serve in the seat of judgment is reflected by the career of many nonsighted persons.3 Blindness does not disable one to be a lawyer or a Judge; it is contradictory to use the defect as a reason of rejection as a juror, especially since the juror does not act alone but in conjunction with 11 other persons to reach a joint determination.

.True, the blind juror cannot see the witness or real evidence. But an appraisal of testimony does not depend on the mere visual presentation; the voice of the witness and the inherent probability of the truth of the testimony are as cogent signs of the credibility of the evidence. In the use of these tests a blind person is no more handicapped than the sighted.

Indeed, the selection of jurors depends largely on the judgment of the suitors at the time of the trial. Any predilection or bias on the part of a prospective juror which would militate against a fair verdict is thus left to exposure at the voir dire; and I see no. difference between the exercise of judgment in the selection of jurors between physical blindness and a blind spot in the emotional or intellectual personality. In each case the acceptance of the juror hangs on the assessment of his qualities to serve in the particular litigation to be tried.

As the majority fairly admits, save for the existence of blindness, the petitioner has an exceptional educational background. He undoubtedly could act in the capacity of a juror as *117well as the average sighted juror. The community has increasingly recognized the potential reservoir of talent and intelligence which the blind possess in common with other members of the group through the expansion of schools and auxiliary services: jury service, it seems to me, is not beyond their capabilities.

I vote to reverse the judgment and to grant the petition.

Beldock, P. J., Ughetta and Brennan, JJ., concur with Christ, J.; Hopkins, J., dissents in separate opinion.

Judgment of the Supreme Court, Kings County, dated April 26, 1966, affirmed, without costs.

. It has been estimated that the number of blind persons (i.e. blindness as defined by the Social Security Act of 1935) in the United States in 1966 was 421,250, and that in 1980 their number will approximate 519,000 (Estimated Statistics on Blindness and Vision Problems, National Society for the Prevention of Blindness, Inc. p. 25 [1966]; Estimated Total Cases and New Cases of Legal Blindness by State, 1966, National Society for the Prevention of Blindness, Inc. [1967]). Of those legally blind in 1966, it appears that the greatest number reside in this State. The number of persons barred from jury service by my colleagues’ holding, however, extends beyond those called legally blind and undoubtedly includes many persons suffering severe vision impairments. Thus, using as a standard the ability to read ordinary newsprint with the aid of glasses, the United States National Health Survey has estimated that in the period 1959-1961 approximately 988,000 persons suffered severe vision impairments. (Selected Impairments by Etiology and Activity Limitation, United States, July 1959-June 1961, U. S. Department of Health, Education and Welfare, Public Health Service.) The world’s blind population is thought to be about "9,500,000 (1960 Britannica Book of the Year 108).

. These qualifications were said in 1940 to have existed for more than a hundred years (Sixth Animal Report of the New York Judicial Council, 1940, p. 206).

. United States Senator (Thomas P. Gore); members of Parliament (Henry Fawcett; Sir Ian Fraser); Judges (Charles R. Simpson; Clair L. Finch). Blindness is not a disqualification for holding public office (State ex rel. Shea v. Cocking, 66 Mont. 169).