Hernández v. New York
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
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
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
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
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
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).