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Judge Joan Shkane : Legal Myths and Reality

By Judge Joan Skhane:

This is a continuing discussion of Legal Myths and Reality because an informed citizen is always the most successful citizen.

MYTH: Our court system is intentionally designed to provide access to the courts and to justice for each individual, regardless of his/her situation.

REALITY: New York State courts try very hard to provide access to all, but do not always achieve this goal. For example, 48 million people in the US suffer from a hearing loss and 1 million are deaf. In September 2017 Chief Justice Janet DiFiore established an advisory committee “to improve court access for the disabled”. One of the committee’s models is the 2016 Small Claims Court guide for New York City which requires that each hearing impaired or deaf individual is provided an interpreter for sign language. However, more than 95 percent of those who are so impaired cannot read sign language. This would be the same thing as providing a Spanish interpreter to a Russian speaking person. It is useless. The courts have long had readily available assistive listening systems and technologies. However, they are generic. Now the courts are working to match degree and type of hearing loss to each individual. Sadly, they have not achieved this yet, and work remains to be done on this issue to ensure equal access to justice for all.

MYTH: In New York State a terminally ill patient who is capable of making a decision to end his/her life by obtaining a prescription from a physician to hasten death may do so.

REALITY: This states’ highest court ruled in September 2017 that this practice continues to be outlawed. A physician who prescribes a lethal dose of medication may be criminally prosecuted and face punishment if convicted. This is the most powerful incentive to a physician to refuse to participate in assisting a “terminally ill patient ‘s access to physician-prescribed medication that allows the patient in the last painful states of life to achieve a peaceful death as the end draws near “. Under New York law such patients do not have a guaranteed right to physician-assisted suicide. However, for years the “aid-in-dying” movement has been asking legislators to pass laws that would allow for a mentally capable, terminally ill adult to have access to lethal doses of medication to end their lives. For those in favor of such a law, the courts will not NOW decide in their favor. Therefore, such a person must look to the legislature to provide the answer they desire by changing the law.

MYTH: In an instruction to a jury at the close of a trial, the Judge must treat all evidence the same.

REALITY: There are exceptions. For example, as of 2017, in a case with a witness identification of a suspect who is of a different race than the identifying witness, the law has changed. If asked, the Judge must tell the jury that if there is a racial difference between the defendant and the witness who identified the defendant, then the jury should consider that people may have greater difficulty accurately identifying a member of a different race than in accurately identifying a member of their own race.

Giving attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.


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