Judiciary Law § 510 provides that to be qualified as a juror a person must: (1) be a citizen of the United States, and a resident of the county, (2) be not less than eighteen years of age, (3) not have been convicted of a felony, and (4) be able to understand and communicate in the English language.  Under this section, a hearing impaired juror may sit, but only if he or she “is capable of doing what jurors are supposed to do,” including hearing and evaluating the testimony through lip-reading, use of assistive devices, or other means (People v Guay, 72 AD3d 1201, 1202 [3rd Dept 2010], citing People v Guzman, 76 NY2d 1, 5 [1990]; see CPL § 270.20 [1][a]; Judiciary Law § 510).

In Guay, the Third Department affirmed defendant’s conviction after the trial court dismissed a prospective hearing-impaired juror over defense objection, who the court determined would likely be unable to hear the testimony.  Affirming the Third Department’s holding, the Court of Appeals held that “this case is not akin to Guzman where the prospective juror confirmed that a sign language interpreter would allow him to follow the proceedings verbatim,” since in Guay, no alternative accommodations were requested or discussed (People v Guay, 18 NY3d 16, 23 [2011]).

Along these lines, the Fourth Department noted that “[i]t is well established that ‘[a] juror who has not heard all the evidence is grossly unqualified to render a verdict’ ” (People v Jean-Philippe, 101 AD3d 1582 [4th Dept 2012], citing People v Hymes, 70 AD3d 1371, 1372 [4th Dept 2010], lv denied 15 NY3d 774 [2010] and People v Williams, 202 AD2d 1004 [4th Dept 1994]).

In Jean-Philippe, the trial court made a valiant but unsuccessful attempt to save the conviction when it quizzed a sleeping juror about whether she “missed any relevant or important . . . parts . . . of the testimony” and “heard everything that [she] need[ed] to know thus far” (while she was sleeping?).   The Fourth Department noted that “because there were no alternate jurors at the time, the dismissal of a juror would have required a mistrial” however “it was incumbent upon the court to dismiss that juror, even though that dismissal would have necessitated a mistrial.”  Even though it was really, really hard.  Even though it meant starting all over.  Even though the temptation to press on as if things were OK must have been overwhelming.

A juror who cannot hear the testimony is unable to understand the testimony and is therefore incapable of “doing what jurors are supposed to do.”  Such a juror is unqualified to serve under Judiciary Law § 510 and must be excused.

In an interesting aside, defense counsel is not held to this same lofty standard.  Not until counsel has been “repeatedly unconscious through not insubstantial portions” of even capital murder trials will prejudice to the defendant be presumed (see, Muniz v Smith, 647 F3d 619 [6th Cir 2011]; Burdine v Johnson, 262 F3d 336, 340-41 [5th Cir 2001]; Tippins v Walker, 77 F3d 682, 685 [2nd Cir 1996]).  But one juror taking a little cat nap (it’s warm in those courtrooms, had a big lunch, counsel drones on, 11 others to pick up the slack, what’s the big deal?) requires reversal?  Doesn’t seem right.