Courtroom atmospheres, deposition testimony, and cross-examinations have long-standing oral traditions and culture. How does an individual who does not speak participate in such traditions?
Individuals who have severe communication impairments of speech and/or writing may accomplish their communication potential through the use of augmentative and alternative communication (AAC). Communication through AAC techniques, symbols, and strategies, however, is not familiar to judges, attorneys, and court recorders within most courtrooms.
How do speech-language pathologists adequately prepare persons with complex communication needs (PWCCN) to participate within a cultural environment that is entrenched and centered on the spoken word? What graphic symbols best represent legal concepts such as "oath," "testimony," "swearing in," and "legal capacity"? How do PWCCN achieve their right to access justice when their "voice" is communicated through a communication assistant and/or through assistive technology? How may SLPs facilitate modifications within the justice system that allow for an appropriate amount of time for persons with severe physical challenges to respond to a rapid series of questions from attorneys or police? At present, access to justice for persons with severe expressive disorders is difficult.
The Legal Arena
Suppose that an SLP is invited to serve as an expert witness in a case involving a PWCCN. The SLP will work with police, lawyers, and judges in connection with a client. It will be necessary to establish an assessment tool that describes the capacity of the client to testify in court. As an expert witness, the SLP will be challenged immediately by opposing counsel regarding the SLP's competence as an expert as well as his or her choice of assessment tool(s).
SLPs also need to understand the key differences between the clinical and legal arenas. The justice system is centered on "winning" and "losing." Insurance companies participate in determining when to settle and "walk away" and end the case. Another difference is the process of evaluation of the client's communication skills. For example, sometimes a proposal for an evaluation must first be submitted to the court and both attorneys for approval before any contact with an individual is permitted. Thus, the SLP may prepare by reading hundreds of pages of clinical and educational reports regarding an individual with an expressive communication disability, and may then need to seek approval for each proposed diagnostic strategy before the actual evaluation. Modifications to the proposed plan may be suggested by either attorney or the judge.
Experts in litigation today must be familiar with the origin and significance of the Daubert case (Bernstein & Hartsell, 2005). This 1993 landmark decision (Daubert v. Merrell Dow Pharms. , 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.2d 469) resulted in specific instructions for expert testimony introduced into the courtroom. Basically, Daubert's rule established requirements for admissibility of expert testimony, including whether or not the employed technique has been peer-reviewed and published, has a known error rate, can be tested, and is a generally accepted practice within the field.
As expert witnesses, SLPs need to prepare for testimony with the understanding that their scientific knowledge will be tested by the opposing attorney, challenged regarding peer reviews and publications, and examined for potential errors and general acceptance by their own scholarly community. Every word and comma in their expert reports will be scrutinized. Although SLPs may feel confident in their professional knowledge base and clinical skills in AAC, writing and defending the expert report within the legal system is very different from preparing a clinical report for a public school or medical facility. To prepare a report for testimony, SLPs need to translate their clinical knowledge into a legally useful form without using jargon, and to follow the rules, roles, and procedures for written reports according to legal tradition. These evaluations and reports must be precise so as not to introduce any reasonable doubt. Failure to understand the purpose and use of a written report may result in a damaging cross-examination and may undermine the SLP's credibility.
One example of potential difficulty is establishing a legal capacity for expressive communication when that expression is an alternative form to speech. As yet, there is no legal definition of "capacity" for testimony if not through speech. The definition of "capacity" is important—a client must be judged to have the "capacity" to participate, because a legal case may set a precedent. When assistive technologies, such as speech-generating devices (SGDs) or voice output communication aids (VOCAs), are introduced, the question arises: Does the legal capacity (or definition of expressive communication competence) shift when an SGD is used? In other words, if an individual communicates through technology, is the individual legally more capable as a witness than if he or she communicates without an SGD? Might SLPs need to perform two evaluations for the court? One evaluation might be conducted to determine "communication capacity" without technology and another evaluation might determine "communication capacity" with technology or AAC strategy.
Courtrooms may not be accustomed to working with people who use AAC systems. During depositions and testimony, court recorders transcribe speech, but now they must transcribe the language of graphic symbols as reported through communication assistants or through synthetic or digitized speech available within the various technologies. Legal counsel typically examines and cross-examines clients on the witness stand in the courtroom. However, the witness stand may not accommodate a person with a disability seated in a power wheelchair and his or her communication partner; SLPs may need to suggest modifications to courtroom seating arrangements. Judges may not accept testimony by a communication assistant in lieu of actual testimony by the client. Training programs for judges and attorneys may be necessary for greater acceptance of communication through AAC systems and other strategies.
Attorneys often challenge the origins of the communication messages; i.e., the "independence" of each communication message may be examined and cross-examined if programmed by the SLP. The "author" of each communication expression emerging from a synthesized or digitized SGD may be scrutinized. SLPs may be accused of speaking for individuals whom they are assisting. Such challenges can be addressed if the SLP orients attorneys and judges prior to the trial to the person's disabilities, use of AAC, types of vocabulary, and characteristics of appropriate questioning techniques for PWCCN. SLPs will need to understand that individuals are eligible for accommodations, and that they may be responsible for requesting accommodations on behalf of the individual and his or her assistants.
Scope of Practice Issues
Responsibilities for SLPs are expanding as public agencies are processing an increasing number of complaints on behalf of consumers. Cases of abuse, fraud, malpractice, and denial of basic services to PWCCN impact speech-language pathology practices because communication is often at the core of each case. In an administrative or court proceeding, SLPs may become involved in legal practices and procedures that extend beyond their education and training. SLPs need to acquire the knowledge and skills to assist individuals who use AAC in pursuing their basic human right to access justice (Huer et al., 2006). An SLP preparing to testify in these types of court cases should acquire knowledge and skills such as:
- Becoming familiar with the legal process, including understanding the steps and procedures for pre-trial processes, discovery, and investigation
- Learning the basic rules of law, including definitions such as legal "capacity" to testify, and consistency and reliability of testimony by PWCCN
- Identifying the various challenges to testimony and to evaluation
- Advocating for accommodations for PWCCN, when appropriate, throughout the legal process
SLPs who enter the legal arena must coordinate their activities with the attorney with whom they are working. "Full disclosure by the attorney of the nature and characteristics of the proceedings, a thorough review of the SLP's testimony, and extensive rehearsal are the key elements of a successful relationship and the necessary ingredients to maximize the potential for a positive outcome for the client," according to Lew Golinker, an attorney with the Assistive Technology Law Center in Ithaca, NY.
SLPs need to know the procedures involved in the filing of charges and questioning of clients. When a client who does not use speech for expressive communication is questioned, new challenges emerge. Procedural rules create the need for new or different types of practices or procedures in AAC. The conversations between the SLP and the client, the programming of AAC device, and the rules for conversations during court proceedings must be understood in advance; if not, the case may be thrown out or introduce "reasonable doubt," possibly affecting the outcome of the case.
In addition, procedural rules for legal proceedings demand that testimony during depositions and during a trial be the same. The person with a disability as well as SLPs need to understand the necessity for consistency and reliability of response every time the same question is asked and answered. Further, when communicating through alternative forms for expressive communication, it may be difficult to convey to a PWCCN—especially one with intellectual disability—the meaning of "testifying under oath." If the communication is through graphic symbols, what does the symbol for "oath" look like? (See page 7 for a photo that has been used to communicate this concept.)
The person with a disability should understand what to expect and what is expected prior to testifying in court. The SLP should realize, and explain to the client, that testimony during a police investigation is different from testifying in court, especially during cross-examination. Often, contact with police in filing a complaint is brief, and courtroom procedures often occur long after the initial complaint. This time lapse may prove challenging for a witness who has difficulty with long-term memory, and the SLP may need to find ways to remind the client about past events without leading the person to the "correct" answer.
Litigation consultation is a relatively new arena for SLPs. Legal advocacy for PWCCN is a complex process that is only beginning to be identified and understood by professionals in the field of AAC. While involvement in legal issues is an exciting extension of practice, SLPs should pursue additional education before entering into the legal arena (see sidebar for resources). During courtroom cross-examination, the written reports and professional credibility of the SLP are as much in question as the capacities of the person with a disability. With appropriate knowledge and skills, advocating for justice for people who use AAC is an important responsibility for SLPs.