Article Title: the Changing Face of Justice in Utah

• Publication year: 2001
• Pages: 01-3
• Citation: Vol. 2001 No. 01 Pg. 01-3

Utah Bar Journal Volume 1.

01-3 (2001). Article Title: The Changing Face of Justice in Utah

January, 2001

Article Title: The Changing Face of Justice in Utah

Author: Carlton M. Clark, Hon. Lynn W. Davis and Steven M Sandberg

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"No es posible. No es posible."(fn1) shouted Santiago Ventura Morales as the jury announced its guilty verdict in his murder trial. Ventura, an eighteen year old migrant from a remote village located in the mountains of Southern Mexico, could not believe the verdict.2

The Oregon trial court had dutifully appointed a Spanish speaking interpreter for the proceedings, but Ventura only understood very simple Spanish. His native language, Mixtec is an indigenous language. Witnesses, who likewise only spoke Mixtec, were confused and bewildered by questions posed to them in Spanish.

The court interpreter could neither faithfully interpret the proceedings into Mixtec, nor interpret the testimony of Mixtec speaking witnesses into English. Repeated interpreter complaints on the record regarding linguistic limitations were unheeded or unnoticed by the court.

The Ventura case had significant national media exposure and raised this country's consciousness regarding fundamental fairness issues and equal access to justice for linguistic minorities.(fn3) The Oregon Court of Appeals affirmed Ventura without written opinion. It was not until two years later that the case was ordered dismissed by the trial judge.(fn4)

Non-English speaking persons appear in Utah's courts with increasing frequency. Utah has reportedly had no such outrageous cases comparable to Ventura where linguistic minorities have been denied justice, but it is fair to say that less consequential, but still very troubling, problems have occurred and continue to occur in Utah's courts.

Introduction

No man shall be deprived of "life, liberty, or property without due process of law," establishes the important concept of individual fairness in the American judicial system. Increased immigration and demographic changes in language use occurring in Utah and throughout the nation, challenge fundamental guarantees of individual fairness. These guarantees include the rights of confrontation and due process set forth in the 5th and 14th Amendments. To provide individual rights, courts are increasingly compelled to use language interpreters for defendants who do not speak or understand English. Providing court interpreters thus becomes an integral part of "justice for all" in federal and state courts.(fn5)

Language interpreters overcome the barriers and cultural misunderstandings that can render criminal defendants virtually absent from their own proceedings; they also eliminate the misinterpretation of witness statements made to police or triers of fact during these court proceedings. This article focuses on the criminal justice system, but its practical suggestions apply equally to civil, probate, and administrative proceedings as well. Interpreters are extremely beneficial, perhaps necessary, in civil matters that involve complex issues such as termination of parental rights, adoptions, and the terms and conditions of divorce settlements.

Some state constitutions guarantee the right to an interpreter despite the absence of such an explicit provision in the U.S. Constitution.(fn6) The Court Interpreters Act of 1978 requires federal courts to appoint an interpreter in both criminal and civil actions commenced by the federal government in a United States District Court. 28 U.S.C. § 1827(d) (1988).(fn7) Federal district courts recorded 165,151 interpreted events in 1999, 94% of which were Spanish.(fn8) Moreover, courts have recognized that when defendants cannot effectively communicate with their counsel or understand the charges against them, they are entitled to an interpreter to take full advantage of their constitutional rights and to ensure due process.(fn9)

Utah's Need for Court Interpreters

It is projected that from 1995 through 2025, the number of Hispanics in Utah will grow from 110,000 to an estimated 265,000 - an increase of 120%.

In that same time period, the Asian and Pacific Islander population in Utah will rise from 46,000 to 113,000, increasing by 123%.(fn10)

Without making the unwarranted assumption that an increased population of minority groups leads to a higher number of court cases involving minorities, these expanded populations will place more pressure on the justice system to effectively offer equal access to non-English speakers. During the twelve months prior to July 1, 2000, the State of Utah paid for close to 16,000 hours, or 2,000 days, of interpreter time.

What linguistic groups have required interpreters in Utah's courts? Interpreter coordinators statewide have estimated that approximately 85% of our interpreter needs are for Spanish speaking individuals.

What is interesting, and somewhat surprising, is the scope of the other languages that comprise the remaining 5% of requests between June 1, 1999 and May 31, 2000. They are, in descending order: Russian, Cambodian, Laotian, Korean, Samoan, Somalian, Persian, Punjabi, Czech, Japanese, Tigrena, Cantonese, Portuguese, Navajo, Hindi, Tagalog, Filipino, Mongolian, Nepalese, Lithuanian, and Mandarin Chinese.

Legal Right to an Interpreter

Rule 3-306 of the Code of Judicial Administration, together with Appendix H of the Professional Rules of Responsibility, outline the duties of the court interpreter. The interpreter does not independently read rights, give legal advice, or conduct anything off the record unless authorized to do so by the court. Note also that interpreters must not correct erroneous facts posed in the questions and shall not correct the testimony given by the party or witness even if clearly in error. Simply stated, interpreters only interpret what they hear. They interpret the statements made in court for the defendant, and they interpret the defendant's (and other non-English speaker's) statements for the court. The interpreter also facilitates communication between the defendant and defendant's counsel.

The trial judge determines whether the defendant needs an interpreter. Section 77-1-6 of the Utah Code outlines the rights of criminal defendants which include the right to an interpreter when the defendant does not understand witnesses and officers of the court.(fn11) If the witnesses are not understandable, comprehensible, or intelligible, and the absence of an interpreter deprived the defendant of some basic right, then the trial court may...