No Abuse of Discretion By Removing a Juror, Whose First Language Is Not English, Who Stated After Trial Commenced That She Could Not Understand Everything Being Said.

State v. Berrios, Minn.Ct.App., 8/24/10.  The state charged Mr. Berrios with third degree criminal sexual conduct.  On the second day of the trial, a juror asked if she could be provided with a Spanish interpreter for the remainder of the trial.  She explained that she understood English and was able to understand the witnesses who had testified on the first day of the trial with the exception of “certain unspecified, large words, and certain unspecified sentences. 

The ability to communicate in the English language is one of several qualifications for jury service.  Minn.R.Gen.Pract. 808(b)(4).  (Curiously, a juror with what the rules call “a sensory disability) is entitled to the services of an interpreter during trial and deliberations.)  The criminal rules require that a juror who becomes unable or disqualified to perform her duties be replaced.  Minn.R.Crim.P. 26.02, subd. 9.  The trial court’s determination to remove a juror is a discretionary call so the appellate court upholds that decision.

For the first time on appeal, Mr. Berrios argued that the juror’s removal raised the inference of racial discrimination.  Minn.Stat. 593.32, subd. 1 prohibits the exclusion of a citizen from jury service on account of race, color or national origin, among other attributes.  The appellate court refused to address this argument, saying that Mr. Berrios had forfeited it by not raising it with the district court.