WASHINGTON -- A divided Supreme Court ruled yesterday that individuals for whom English is a second language may sometimes be barred from juries if prosecutors fear that they will second-guess the translation of foreign-language evidence.
Although the court could not gather a majority of justices for any one opinion, the result nevertheless was a 6-3 ruling that seemed to expand the power of prosecutors to use automatic challenges to keep minorities off juries in criminal trials.
In a criminal trial, each side -- the prosecution and the defense -- is allowed a set number of automatic, or "peremptory," challenges to keep individual jurors off the case. No reason has to be given for such actions.
The court, however, had ruled five years ago that prosecutors may not use that power to bar a juror on the basis of his or her race.
Yesterday, the court faced for the first time the issue of whether excluding jurors because they are bilingual was the same as excluding them because of their race or ethnic ancestry.
The court majority said it was not the same.
The ruling dealt specifically with exclusion of Hispanic jurors who also speak and understand English. The decision, however, would appear to apply in any situation involving bilingual or multilingual jurors, when some of the evidence at a trial will be in a foreign language and will be translated into English.
Four of the nine justices concluded that it would be clearly unconstitutional for a prosecutor to bar all individuals who speak both a foreign language and English when the reason was their ethnic background. But excluding them because their bilingual status might affect how they react to the interpreter's official translation of foreign-language evidence is not based on ethnic character or race, those four justices said in an opinion by Justice Anthony M. Kennedy.
Those justices, however, said that in some communities foreign-language ability might be so closely linked with ethnic identity that it might be "treated as a surrogate for race. . . . A policy of striking all who speak a given language . . . may be found . . . to be a pretext for racial discrimination."
Two other justices went even further, arguing that prosecutors should be allowed to strike any juror for any reason -- or for no reason -- so long as race was not the actual reason. Even if a juror is stricken because of foreign-language ability, and that is "related to race," such jurors should be subject to exclusion if there are reasons other than race alone for it, those justices said in an opinion by Justice Sandra Day O'Connor.
The six justices combined their votes to uphold the attempted-murder conviction of a Brooklyn, N.Y., man, Dionisio Hernandez.
A prosecutor had barred two Hispanic jurors because of concern that they might not accept the official interpreter's version of evidence given in Spanish. The prosecutor insisted that race bias was not the reason for his action, and the trial judge agreed.
The ruling came in the case of Hernandez vs. New York (No. 89-7645).
In another significant action yesterday, the court declined without explanation to give the states new guidance on how far, constitutionally, they may go to forbid minors from entering stores that sell sexually explicit magazines, books or films -- an issue that is causing widening controversy in lower courts.
The court declined to review a case from Georgia, where a state law bars anyone under the age of 18 from going into a store that sells, on open shelves, items that would not be obscene if sold to adults but would be if sold to minors (American Booksellers vs. Webb, No. 90-1523).