ASK "BERNIE THE ATTORNEY"
By NCF Medical Committee
From Fall 2010 Forum
Q: I am supposed to testify at a court trial. However, given the stress, strain and exhaustion of just appearing in court, I am concerned that my cognitive dysfunction will cause my testimony to not be clearly understood or not understood at all, and therefore not be credible. Are there any accommodations available in the courts to assist a disabled person such as myself to have assistance in testifying, similar perhaps to a person who does not speak English having an interpreter or a deaf or hearing impaired person having some one who understands signing to then speak and say to the court what the deaf person is signing/saying so that the court, the disabled's own attorney and opposing counsel will know what the real testimony is?
A: Despite many court approved and encouraged disability accommodations, there remains much to be accomplished when it comes to interpreting and conveying the thoughts of a cognitively disabled person — especially one whose cognitive dysfunction becomes markedly more severe as the proceedings are dragged out and the narrow window of energy wanes. On August 11, 2010, the Massachusetts Supreme Court made significant progress in a situation where a complainant had previously suffered a stroke and was unable to testify against a defendant who had assaulted her. As a result, the case was dismissed initially. The matter was appealed to the Massachusetts Supreme Court which held that the case was dismissed wrongfully and that the complainant was entitled to have someone accommodate her by listening to her statements as she was best able to explain them and then conveying to the court what her testimony was. The citation for this excellent and possibly ground breaking decision is In The Matter of Ruby McDonough, Petitioner, (Massachusetts) Supreme Judicial Court Number: SJC-10609, which decision was issued on August 11, 2010.
The potential for other not yet customary accommodations in the future could include afternoon sessions, not more frequent than 2 or 3 times a week; video conferencing so that testimony could be obtained from a bedridden person at home, if other circumstances permit; having a recliner to sit on through the court proceedings so that the disabled would not be compelled to sit on a usual upright chair at a courtroom desk; being able to lie down during the proceedings if court and physician approved and the possibilities are limitless. In all fairness, some of these accommodations already are available usually with the consent of the judge and by agreement of counsel. But when the consent or agreement is not forthcoming for whatever reason, now counsel for the disabled client can make a formal motion to request what is not considered a usual and customary accommodation for a courtroom setting.
If you have any questions, you should consult with your own attorney. If you do not have an attorney, you can write to "Bernie The Attorney," to Bernard A. Kansky, Esq. c/o The National CFIDS Foundation, Inc., 103 Aletha Rd., Needham, MA 02492-3931, or e-mail "Bernie the Attorney" via the NCF website.
The National CFIDS Foundation * 103 Aletha Rd, Needham Ma 02492 *(781) 449-3535 Fax (781) 449-8606