Lost in Translation: the Need for a Formal Court Interpreter Program in Alaska

• Publication year: 2005

§ 21 Alaska L. Rev. 113. LOST IN TRANSLATION: THE NEED FOR A FORMAL COURT INTERPRETER PROGRAM IN ALASKA

Alaska Law Review
Volume 22
Cited: 22 Alaska L. Rev. 113

LOST IN TRANSLATION: THE NEED FOR A FORMAL COURT INTERPRETER PROGRAM IN ALASKA

T. Caroline Briggs-Sykes

I. INTRODUCTION

II. ALASKA'S CURRENT POLICY AND THE MOVEMENT FOR REFORM

A. Brief Overview of Federal and State Approaches

B. Alaska's Current Approach

C. The Need for Reform in Alaska

D. The Alaska Reform Movement

III. ESTABLISHING A CONSTITUTIONAL RIGHT TO AN INTERPRETER

A. Federal Constitution

B. Alaska Constitution

IV. BALANCING POLICY CONSIDERATIONS

A. Issues of Access

B. Issues of Quality

C. Issues of Accuracy

V. CONCLUSION

FOOTNOTES

When a non-English speaking person is charged with a crime, the language barrier that separates the defendant from his attorney, his accuser, and a jury of his peers has the potential to implicate the defendant's right to due process. The use of a qualified, impartial interpreter at trial, however, can prevent this infringement. In this Note, the author will examine the State of Alaska's current policy regarding the use of foreign language interpreters in criminal trials. The author will then suggest ways in which this policy might be amended in order to better safeguard the rights of non-English speaking defendants in the criminal justice system.

I. INTRODUCTION

The state of Alaska possesses a diverse population. According to the most recent U.S. Census, nearly 15% of Alaskans speak a language other than English in the home. ^[1] While this figure represents an increase in the total number of non-English speakers in the state over the last decade, ^[2] Alaska has not made significant changes to its court interpreter [*pg 114] policy since 1989. ^[3] This Note will examine the current policy and propose recommendations intended to benefit the non-English-speaking population of the state. The purpose of this Note is to discuss the inadequacies of the current interpreter policy and to advocate for reform. While the use of interpreters is an important issue throughout the Alaskan legal system, this Note will focus solely on the State's interpreter policy as it applies to the criminal justice system.

Part II of this Note will briefly summarize the various approaches to the interpreter issue taken by other jurisdictions, explain Alaska's current interpreter policy, and make a case for reform of the Alaska policy. Part III will recommend establishing a criminal defendant's right to an interpreter at trial and suggest constitutional provisions in which this right may be grounded. Part IV will discuss various policy-related issues that will arise after the right to an interpreter has been established. Part V will advocate that the Supreme Court of Alaska adopt the recommendations of the Advisory Committee on Fairness and Access as the most appropriate means of reforming the State's current court interpreter policy.

II. ALASKA'S CURRENT POLICY AND THE MOVEMENT FOR REFORM

A. Brief Overview of Federal and State Approaches

Recent census data reveals that the number of non-English-speaking persons living in the United States has steadily increased over the last twenty years. ^[4] One consequence of this growing multilingualism is an increased need for language translation services, particularly in the criminal justice system. While every state has confronted this issue, states have not responded uniformly. In California, for example, the state constitution explicitly guarantees criminal defendants the right to an interpreter at trial. ^[5] In other states, the right to an interpreter has been established through the courts ^[6] or by statute. ^[7] In addition to recognizing [*pg 115] this right, some states have developed certification procedures to ensure that interpreters are adequately qualified to render accurate translations in court. ^[8] Some states have even offered interpreter training courses in order to educate individuals in the art of courtroom interpretation. ^[9]

The federal government has also responded to the need for increased language translation services in the court system. The Federal Court Interpreters Act requires the use of certified language interpreters when a federal criminal defendant or witness in a federal criminal trial cannot speak or understand English. ^[10] The Director of the Administrative Office of the United States Courts is responsible for overseeing the certification of interpreters for use in the federal court system. ^[11] Because the United States Supreme Court has not yet interpreted the Act, its implementation has varied. Several circuits, however, have held that an interpreter is required by law only when the trial court is aware of a potential language barrier, has conducted an investigation into the need for an interpreter, and has determined that an interpreter is necessary to safeguard the rights of the defendant. ^[12]

B. Alaska's Current Approach

In Alaska, neither the legislature nor the court system has identified a right to an interpreter during a criminal trial. Instead, parties to both civil and criminal proceedings, regardless of their financial ability, are required to supply their own interpreters. ^[13] Rule 6 of the Alaska Rules of Administration provides that "[i]nterpreters and translators will be provided and their fee paid . . . in civil and criminal cases, by the party who requires translation or interpretation to understand the proceedings or who calls a witness whose testimony must be translated or interpreted." ^[14] No case in Alaska has considered whether an indigent defen-[*pg 116] dant has the right to a court-appointed interpreter at trial, and nothing in the language of this Rule indicates that a trial court would be required to provide an interpreter to a non-English-speaking defendant who could not afford one.

Under Rule 604 of the Alaska Rules of Evidence, a trial judge has the discretion to disallow the use of an interpreter at trial. ^[15] Before permitting the use of an interpreter, a trial judge is required to determine whether the proposed interpreter is qualified and impartial. ^[16] In order to make this determination, the trial judge must "inquire into and consider the interpreter's education, certification and experience in interpreting relevant languages; the interpreter's understanding of and experience in the proceedings in which the interpreter is to participate; and the interpreter's impartiality." ^[17] Presumably, if the trial judge were to find that the proposed interpreter were either unqualified or biased, the judge could deny the use of the interpreter at trial. It is unclear whether a trial judge may deny the use of an interpreter at trial based on a finding that the defendant (or other party requesting an interpreter) can speak and understand the English language, or for any other reason not identified in Rule 604.

The State has no training program for court interpreters and no certification procedure to ensure that untrained interpreters are adequately qualified. ^[18]

Given the ambiguity of these rules, as well as the diverse population of Alaska, one would expect a significant amount of litigation regarding the use of interpreters during criminal proceedings. In reality, however, surprisingly few cases in the state courts have dealt with this issue, and none have involved an interpretation of Administrative Rule 6 or Evidence Rule 604 or considered whether a defendant has a constitutional right to an interpreter. The following is an overview of those cases in which the absence or use of an interpreter at trial was an issue on appeal.

1. Qualls v. City of Anchorage.

In Qualls v. City of Anchorage, ^[19] the defendant had been convicted of violating two criminal ordinances for failing to restrain his dog in a secure enclosure. ^[20] Qualls argued on appeal that the trial judge erred in failing to require an interpreter for the [*pg 117] complaining witness, whose testimony at trial was "incomprehensible." ^[21] The Qualls court acknowledged that the witness spoke broken English but found it "evident from the transcript . . . that she understood the questions and gave intelligent responsive answers." ^[22] In addition, the Alaska Supreme Court held that no error was committed because Qualls failed to request an interpreter or object to the testimony during trial. ^[23]

Unfortunately, Qualls did not "brief [this] point to any extent," ^[24] so the precise degree of confusion regarding the witness's testimony is unknown. The court's treatment of the interpreter issue, however, is consistent with that of the courts of other states. ^[25] Without using the same terminology employed by other courts, the Qualls court determined that the trial judge had no duty to inquire into the need for an interpreter because (1) the defendant failed to request an interpreter and (2) the witness in question had an adequate understanding of the proceedings and provided intelligent responses to the questions posed. ^[26] Interestingly, however, the court appeared more concerned with the ability of the city's witness to understand English than with the ability of the defendant to understand the witness's testimony. To support its finding that no error occurred, for example, the court noted that "[the witness] understood the questions." ^[27] The court's failure to directly address the...