A Meaningful Opportunity to Participate

A Handbook for Georgia Court Officials on Courtroom Accessibility
for Individuals with Disabilities

PART IV:
Removing Common Barriers to Access

Page 2 of 3

Persons who have Mental or Cognitive Disabilities

One of the most difficult matters Georgia courts face in accommodating persons with disabilities is in the area of mental illness or cognitive disability. Cognition refers to "understanding," the ability to comprehend what you see and hear and the ability to infer information from social cues and "body language." People with these impairments may have trouble learning new things, making generalizations from one situation to another and expressing themselves through spoken or written language. Cognitive limitations of varying degrees can often be found in people who have been classified in school as learning disabled, mentally retarded, autistic or who have been diagnosed as having a head injury or Down Syndrome.

Because the issues facing individuals with mental illness or cognitive disability often touch on basic rights, especially for criminal defendants, it is difficult to address them effectively in the scope of this handbook. What follows are three basic steps Georgia courts can take in their efforts to ensure that people with mental or cognitive disabilities have equal access to justice.

In many cases, courts must first determine whether an individual is a "qualified individual with a disability" under the ADA. For a criminal defendant, this will usually be a determination of whether the individual is competent to stand trial. In other situations involving a person with a mental disability appearing as a witness or as a potential juror, the court must determine whether or not that individual can carry out his or her duties in a courtroom. For example, if an individual is unable to understand testimony as a juror because of mental retardation, or if an individual disrupts the courtroom frequently as a spectator because of behavioral problems or delusions, those individuals are not "qualified" and can be excluded from the courtroom. However, it is important to remember that mental retardation or a traumatic brain injury will not always leave individuals unqualified to serve as witnesses, spectators or jurors. Courts should conduct an individualized inquiry to determine whether an individual is "qualified."

Courts must next determine whether it is possible to provide reasonable accommodations for an individual with mental or cognitive disabilities without a fundamental alteration of court programs and services. Keep in mind that many people with mental or cognitive impairments may not be able to request accommodations effectively and may need assistance in constructing appropriate accommodation requests, whether from the court or from their legal representatives.

The third step is determining whether an individual with a mental or cognitive disability poses a "direct threat" to himself or others in the courtroom. The ADA requires Georgia courts to make a knowing, individualized determination - not based on myth, fear or stereotype - of whether an individual poses a threat, and to consider any possible, available accommodations for this threat. Courts may choose to exclude individuals who pose a threat but only in a manner consistent with their civil rights and other protections.

© Georgia Commission on Access and Fairness in the Courts, December 2004

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