§604 Interpreter

• Library: Evidence Restated Deskbook (2021 Ed.)

§604 Interpreter

An interpreter must be qualified and must give an oath or affirmation to make a true translation.

Notes

Missouri courts are required to appoint interpreters and translators in all legal proceedings in which a non-English-speaking person is a party or a witness. Section 476.803.1, RSMo 2016. The authority is also provided in § 476.060, RSMo 2016 ("The courts may, from time to time, appoint interpreters and translators to interpret the testimony of witnesses, and to translate any writing necessary to be translated in such court, or any cause therein.").

There are three categories of interpreters:

1. "A witness-interpreter is used to translate, for the benefit of the court and all in attendance, the testimony of a witness who is unable to testify in the language of the forum."

2. "A defense-interpreter . . . serves as a translator for a criminal defendant who, by reason of a physical disability or non-familiarity with the language of the forum, is otherwise inhibited in his ability to comprehend the proceedings and communicate with counsel." State v. Gonzalez-Gongora, 673 S.W.2d 811, 816 (Mo. App. S.D. 1984).

3. A party-interpreter serves as a translator for a party in a civil case who is unable to comprehend the testimony. See C.L.S. v. C.L.S., 722 S.W.2d 116, 119–20 (Mo. App. E.D. 1986).

The non-English-speaking party or the party who intends to call a non-English-speaking witness is required to provide prior notice to the court that an interpreter or translator will be needed when required by court rules. Section 476.803.2.

If the witness is a party opponent, the translator's interpretation is equivalent to an admission, and testimony relating what the translator said is, therefore, admissible over a hearsay objection. See State v. Randolph, 698 S.W.2d 535, 537–39 (Mo. App. E.D. 1985).

Constitutional right to interpreter in criminal cases

"The failure to provide an interpreter may amount to a constitutional error [as] part of the requirement of fundamental fairness mandated by the Due Process Clause of the Fourteenth Amendment as well as the Sixth Amendment right of confrontation." 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 604.03 (Joseph M. McLaughlin, ed., Matthew Bender 2^nd ed. 1997); see, e.g.:

· Sosa v. Mohawk Corr. Fac., No. 07 Civ. 5916(NRB), 2008 WL 534764, at *6 (S.D.N.Y. Feb. 25, 2008) ("While the Supreme Court has not directly addressed the issue, several circuits, including the Second Circuit, recognize that non-English speaking defendants have a constitutional right to a court appointed interpreter during their criminal trial.")

· Garcia v. Davis, No. 7:16-CV-632, 2018 WL 5921018, at *16 n.151 (S.D. Tex. Nov. 9, 2018) ("[A]ppellate courts are unanimous in determining that failure to provide an interpreter violates Sixth Amendment and Due Process Rights.")

See also State v. Gonzalez-Gongora, 673 S.W.2d 811, 818 (Mo. App. S.D. 1984); Castellon v. Whitley, 739 F. Supp. 526, 527 (D. Nev. 1990).

But "[a]s long as the defendant's ability to understand the proceedings and communicate with counsel is unimpaired, the appropriate use of interpreters in the courtroom is a matter within the court's discretion." Id. at 528; State v. William, 505 S.W.3d 344, 349–52 (Mo. App. W.D. 2016); cf. § 476.803, RSMo 2016.

Waiver

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