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

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. T HE R IGHT TO AN A PPOINTED I NTERPRETER AT T RIAL AND D URING O THER C OURT P ROCEEDINGS .......................................................... 2303 1. The Federal System .............................................................. 2303 2. State Interpreter Statutes ..................................................... 2305 B. T HE R IGHT TO C ONFER WITH C OUNSEL .......................................... 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. P ROTECTING V ULNERABLE D EFENDANTS ......................................... 2310 B. P REVENTING G OVERNMENT O PPRESSION ......................................... 2312 C. U PHOLDING THE V ALUES OF THE A MERICAN J UDICIAL S YSTEM ......... 2313 D. E XECUTIVE B RANCH R ECOGNITION OF THE R IGHT TO AN O UT - OF C OURT I NTERPRETER ..................................................................... 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. C ONFLICTS OF I NTEREST IN THE A BSENCE OF Q UALIFIED AND A PPOINTED O UT - OF -C OURT I NTERPRETERS ...................................... 2318 B. S TANDARD OF R EVIEW ..................................................................... 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. P AYMENT ....................................................................................... 2325 V. PRESERVING THE SIXTH AMENDMENT BY GIVING MEANING TO THE RIGHT TO AN INTERPRETER ................................................................. 2327 A. T HE S UPREME C OURT S HOULD R ECOGNIZE THE R IGHT TO AN O UTOF -C OURT I NTERPRETER FOR I NDIGENT LEP D EFENDANTS ............... 2327 B. I MPLEMENTING THE R IGHT TO AN O UT - OF -C OURT I NTERPRETER ..... 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 right 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). 2302 IOWA LAW REVIEW [Vol. 99:2299 result is that LEP defendants are forced to seek inadequate substitutes for interpretation or are denied their Sixth Amendment conferral right altogether. 10 This Note argues that the Sixth Amendment guarantees indigent LEP defendants court-appointed interpreters for out-of-court communications with their attorneys. 11 Part II examines how the right to a court interpreter has evolved separately from the right to confer with counsel and how courts have yet to address the interrelatedness of the two rights. Part III considers the various rationales courts and the executive branch have given in support of providing court interpreters to indigent defendants and concludes that courts are generally motivated to implement the conferral and interpreter rights by similar considerations of fairness. Part IV demonstrates how the current system denies LEP defendants the right to confer with counsel, thereby producing undesirable results, including unreliable verdicts. Part V proposes that the next logical step in the evolution of the conferral and interpreter rights is for courts to recognize the right of indigent LEP defendants to access out-of-court interpretation services to confer with counsel. The Note concludes that courts must uphold the Sixth Amendment rights of all LEP defendants by ensuring access to court interpreters during both in-court and out-of-court proceedings. II. THE RIGHT TO AN APPOINTED INTERPRETER AT TRIAL AND THE RIGHT TO CONFER WITH COUNSEL Neither the Supreme Court nor Congress currently recognizes the right to an appointed interpreter for out-of-court, attorney–client interactions. Thus far, the Supreme Court has acknowledged that criminal defendants have the right to out-of-court conferrals with their attorneys as part of their Sixth Amendment rights to counsel and a fair trial. 12 Because the Court recognizes a Sixth Amendment basis for the conferral right, the Constitution assures its equal application throughout the country. 13 Further, when the 10. See infra Part IV (providing case examples in which LEP defendants were denied interpreters to aid in their right to confer with counsel). 11. At least one other scholar has also argued that out-of-court interpretation for indigent LEP defendants is already provided for under the Sixth and Fourteenth Amendments. See Joseph P. Van Heest, Rights of Indigent Defendants in Criminal Cases After Alabama v. Shelton, 63 ALA. LAW. 370, 371–72 (2002) (stating that felony defendants already have access to funds for expert witnesses and interpreters under the Sixth Amendment and arguing that the Shelton decision extends that right to misdemeanor defendants facing a suspended sentence as well). 12. U.S. CONST. amend. VI. The Sixth Amendment provides, in relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” Id. ; see also infra Part II.B...