Justicia Para Todos [1] Ensuring Equal Access to the Courts for Linguistic Minorities

• Jurisdiction: United States,Federal
• Citation: Vol. 9 No. 2 Pg. 21
• Pages: 21
• Publication year: 1996

Justicia Para Todos ^[1] Ensuring Equal Access to the Courts for Linguistic Minorities Vol. 9 No. 2 Pg. 21 Utah Bar Journal February, 1996

Michael Gardner and Judge Lynn W. Davis, J.

Immigration and cultural diversity are among the nation's most significant trends for the 1990s and the next century. These trends have had an impact on the administration of justice in the courts and on the rights of linguistic minorities. Jurists and lawyers generally do not understand the significance of the court interpreter's role and the unique needs of the linguistic minority in the courtroom. As a result, few trial judges and attorneys know what should be required of a court interpreter, what judicial duties arise in a case where interpreter services are used, and what can and does go wrong when court interpreting is improper.^[2]

Court interpreters are frequently utilized in criminal cases in the State of Utah. Spanish, the Island languages, South East Asian languages and Navajo are the four most utilized categories of languages in Utah, with Spanish comprising 80-90% of the interpreters needs.

This presentation does not address the unique challenges of court interpretation for the hearing-impaired. The Utah Division of Rehabilitative Services establishes the proficiency of sign interpreters and establishes, maintains, updates, and distributes a list of qualified interpreters. Utah Code Ann. § 78-24a-l et seq. (1992 & Supp. 1995) specifically deals with interpreters for the hearing-impaired. That is an important topic reserved for another day.

I. THE ROLE AND FUNCTION

The duty of the court interpreter is to interpret to the party or witness all statements made in open court as part of the case. The duty includes interpreting accurately for the judge, counsel and the jury what the accused or witnesses are saying when they speak. As pointed out in the Code of Judicial Administration, "the interpreter shall not answer questions or give advice but shall direct such requests to counsel and/or the court." CJA 3-306 (2)(B). The interpreter does not independently read rights, give legal advice, or conduct anything off the record unless authorized to do so by the court. It is very important to note 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." CJA 3-306 (20)(c)(vi). Sometimes judges reprimand interpreters for not correcting erroneous statements when, in fact, they are mandated not to do so by a Code of Professional Responsibility.

Attorneys and judges should understand the basic interpreter modes:

• Simultaneous - the interpreter speaks (interprets/transmits) at the same time as the source language person.

• Consecutive - the interpreter waits until the source language finishes, then interprets.

• Sight translation - the interpreter translates the source language from a written document.

"Current thinking in the field of judicial interpreting leans toward the use of consecutive interpretation when testimony or statements by non-English speakers are interpreted into English for the record, and simultaneous interpretation when the proceeding is taking place in English and needs to be interpreted for the benefit of non-English speakers."^[3]

This fundamental background leads us to the constitutional underpinnings.

II. CONSTITUTIONAL IMPLICATIONS OF COURTROOM INTERPRETATION

There is no federal constitutional provision guaranteeing the right to an interpreter, ^[4] and only a few states constitutionally guarantee non-English speaking defendants the right to an interpreter.^[5] Courts, however, have recognized that when a criminal defendant is so unfamiliar with English that he cannot effectively communicate with his counsel or understand the charges against him, he is entitled to an interpreter to take full advantage of his constitutional rights ] and to ensure due process.^[6] "The right of a criminal defendant to an interpreter is based on the fundamental notion that no person should be subjected to a Kafkaesque trial which may result in the loss of freedom and liberty."^[7] The simple statement that a non-English speaking defendant is entitled to an interpreter belies the complexities inherent in this issue. The constitutional questions that arise include: when in the proceedings should an interpreter be provided, is each co-defendant entitled to an individual interpreter, and what are the applicable standards of review for violations of the interpreter provision requirement? Utah has not decided these important issues. Utah, in fact, has yet to establish a standard of I review for interpreter violations. This section explores these issues.

STANDARD OF REVIEW -"HARMLESS BEYOND A REASONABLE DOUBT"

In trials of non-English speaking defendants, courts across the country have not applied a uniform standard of review to determine whether an error occurred at trial because of incompetent interpretation. In 1985, the California courts applied an "informed speculation" of prejudice standard of review for cases in which the defendant's right to an interpreter was violated.^[8] Under this standard the defendant could only have the decision overturned on appeal for reversible error if he could show that he suffered either actual or "informed speculation of prejudice." This standard, however, was replaced by the "harmless beyond a reasonable doubt" standard of review in People v. Rodriguez^[9] and People v. Chaves.^[10] Other state and federal courts have reviewed the trial court's actions under an abuse of...