Why the Sixth Amendment Right to Counsel Includes an Out-of-Court Interpreter

• Author: Kate O. Rahel
• Position: J.D. Candidate, The University of Iowa College of Law, 2014; B.A., Kenyon College, 2009
• Pages: 2299-2333

2299

Why the Sixth Amendment Right to

Counsel Includes an Out-of-Court

Interpreter

Kate O. Rahel 

ABSTRACT: The Sixth Amendment provides defendants the right to confer

with counsel before trial and during recesses. The federal and most state

court systems provide a court interpreter for in-court proceedings for indigent

defendants who cannot speak English. However, neither the federal nor state

systems provide an interpreter for out-of-court communications between

attorneys and limited English proficiency (“LEP”) defendants. This Note

argues that courts should provide out-of-court interpretation services for

indigent, LEP defendants to protect their Sixth Amendment conferral rights.

I. INTRODUCTION .................................................................................... 2301

II. THE RIGHT TO AN APPOINTED INTERPRETER AT TRIAL AND THE

RIGHT TO CONFER WITH COUNSEL ...................................................... 2302

A. THE RIGHT TO AN APPOINTED INTERPRETER AT TRIAL AND DURING

OTHER COURT PROCEEDINGS .......................................................... 2303

1. The Federal System .............................................................. 2303

2. State Interpreter Statutes ..................................................... 2305

B. THE RIGHT TO CONFER WITH COUNSEL .......................................... 2306

1. Supreme Court Recognition of the Conferral Right ......... 2307

2. The Nature of the Conferral Right ..................................... 2309

III. THE RIGHT TO CONFER AND ACCESS TO AN INTERPRETER:

PROTECTING FAIRNESS FOR DEFENDANTS ............................................ 2310

A. PROTECTING VULNERABLE DEFENDANTS ......................................... 2310

B. PREVENTING GOVERNMENT OPPRESSION ......................................... 2312

C. UPHOLDING THE VALUES OF THE AMERICAN JUDICIAL SYSTEM ......... 2313

D. EXECUTIVE BRANCH RECOGNITION OF THE RIGHT TO AN OUT-OF-

COURT INTERPRETER ..................................................................... 2314

 J.D. Candidate, The University of Iowa College of Law, 2014; B.A., Kenyon College,

2009. I would like to thank all the members of Volumes 98, 99, and 100 of the Iowa Law Review

for their contributions and hard work.

2300 IOWA LAW REVIEW [Vol. 99:2299

IV. THE INTERPRETER AND CONFERRAL RIGHTS IN PRACTICE .................. 2317

A. CONFLICTS OF INTEREST IN THE ABSENCE OF QUALIFIED AND

APPOINTED OUT-OF-COURT INTERPRETERS ...................................... 2318

B. STANDARD OF REVIEW..................................................................... 2321

1. Plain Error Appellate Review Standard for Interpreter

Error ...................................................................................... 2322

2. Standard of Review for Violations of the Right to Confer 2322

3. Denial of the Consultation Right as the Result of

Interpreter Error: Actual Prejudice Required ................... 2323

C. PAYMENT ....................................................................................... 2325

V. PRESERVING THE SIXTH AMENDMENT BY GIVING MEANING TO THE

RIGHT TO AN INTERPRETER ................................................................. 2327

A. THE SUPREME COURT SHOULD RECOGNIZE THE RIGHT TO AN OUT-

OF-COURT INTERPRETER FOR INDIGENT LEP DEFENDANTS ............... 2327

B. IMPLEMENTING THE RIGHT TO AN OUT-OF-COURT INTERPRETER ..... 2330

VI. CONCLUSION ....................................................................................... 2333

2014] OUT-OF-COURT INTERPRETER 2301

I. INTRODUCTION

The number of people in the United States who primarily speak a

language other than English at home has steadily grown over the last thirty

years.1 Nearly 24.5 million people reported having some difficulty

communicating in English.2 These limited English proficiency (“LEP”)3

individuals face difficult challenges in their interactions with the judicial

system. LEP persons often require court interpreters to understand judicial

proceedings and to participate in the judicial process.4 Under most court

systems in the United States, however, indigent LEP defendants are only

entitled to communication assistance from court-appointed interpreters

during formal, in-court criminal proceedings.5 This leads LEP defendants to

rely on inadequate substitutes for interpretation, such as police employees,

co-defendants, and acquaintances who do not speak English fluently.6

Consequently, LEP defendants may accept unfair plea bargains, fail to assert

a valid defense at trial, or be falsely convicted due to an inability to

investigate and strategize with their attorneys prior to the trial.7

In contrast to the ri ght to an interpreter that courts have recognized

only for in-court proceedings, the Supreme Court has held that the Sixth

Amendment guarantees criminal defendants the right to confer with

counsel before trial and during out-of-court recesses.8 Courts do not

recognize a corresponding right, however, for LEP defendants to have an

interpreter appointed to facilitate these out-of-court communications.9 The

1. HYON B. SHIN & ROBERT A. KOMINSKI, U.S. CENSUS BUREAU, LANGUAGE USE IN THE

UNITED STATES: 2007, at 1 (2010), available at http://www.census.gov/hhes/socdemo/language/

data/acs/ACS-12.pdf.

2. See id. at 3 (“Around 24.5 million people reported their English-speaking ability as

something below ‘very well’ (that is, ‘well,’ ‘not well,’ or ‘not at all’).”).

3. The federal government defines LEP individuals as those “who do not speak English

as their primary language and who have a limited ability to read, speak, write, or understand

English.” Frequently Asked Questions, LIMITED ENGLISH PROFICIENCY (LEP): A FEDERAL

INTERAGENCY WEBSITE, http://www.lep.gov/faqs/faqs.html#OneQ1 (last visited May 27, 2014).

4. A court interpreter is an individual trained to render testimony or other speech in

one language into a second language. Elena M. de Jongh, Court Interpreting: Linguistic Presence v.

Linguistic Absence, FLA. B.J., July/Aug. 2008, at 21, 24. Interpreting can be done simultaneously

(the interpreter renders the speech in the second language as it is given) or consecutively (the

speaker pauses periodically to allow the interpreter to convey the speech in the second

language). Id. at 26. Interpreting should be distinguished from translating, which is “the written

rendition of textual information in one language by the equivalent textual material in another

language.” Id.

5. See infra Part II.A (explaining the current state of interpreter laws).

6. See infra Part IV.A (describing cases of inadequate interpretation).

7. See infra Part IV (discussing cases in which lack of access to out-of-court interpretation

had undesirable outcomes for LEP defendants).

8. See infra Part II.B (providing background on the evolution of the right to confer with

counsel).

9. See infra Part II.A (demonstrating that courts generally appoint interpreters only for

in-court proceedings).