The right to a court interpreter for non- and limited-English speaking parties and witnesses is implicit in the Fifth, Sixth and Fourteenth Amendments of the United States Constitution.  The broad Fifth Amendment right not to be deprived of life, liberty or property without due process of law, the more specific Sixth Amendment rights of a criminal defendant to counsel, to a speedy trial, to be informed of the nature and cause of the accusation, to confront and cross-examine the witnesses, and the Fourteenth Amendment rights to due process and equal protection of the laws are significantly impaired, if not completely denied, when a party to judicial proceedings cannot speak or understand English.[449]  The courts, therefore, have explicitly recognized a limited-English-proficient defendant’s constitutional right to a competent interpreter in criminal proceedings.

 

Not only for the sake of effective cross-examination, however, but as a matter of simple humanness, Negron deserved more than to sit in total incomprehension as the trial proceeded.  Particularly inappropriate in this nation where many languages are spoken is a callousness to the crippling language handicap of a newcomer to its shores, whose life and freedom the state, by its criminal processes chooses to put in jeopardy.[450]

 

In another case, the court explained the right to an interpreter in criminal proceedings as follows:

 

Clearly, the right to confront witnesses would be meaningless if the accused could not understand their testimony, and the effectiveness of cross-examination would be severely hampered [citations omitted].  If the defendant takes the stand in his [or her] own behalf, but has an imperfect command of English, there exists the additional danger that he [or she] will either misunderstand crucial questions or that the jury will misconstrue crucial responses.  The right to an interpreter rests most fundamentally, however, on the notion that no defendant should face the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment.[451]

 

            The right to an interpreter in federal courts was extended to all criminal proceedings through the passage of the Federal Court Interpreters Act.[452]  As amended in 1988, this Act mandates the use of certified or otherwise qualified interpreters in all criminal proceedings for people who primarily speak a language other than English, and it explicitly provides for whom that right is accorded, and how that right should be recognized.  Several states have enacted similar statutes (13 at the end of 1996), and even state constitutional amendments mandating the appointment of court interpreters for limited- and non-English speaking defendants in criminal cases.[453]

[449]  E.g., Amadou v. INS, 226 F.3d 724 (6th Cir. 2000) (due process violation resulted from interpreter’s inaccurate translation, resulting in adverse credibility finding in immigration court); United States v. Higareda-Ramírez, 107 F.Supp.2d 1248 (D. Hawaii 2000) (due process violation to fail to provide interpreter during immigration hearing).

[450] United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970) (homicide conviction vacated on constitutional grounds for failure to appoint an interpreter to assist a Spanish-speaking defendant).

[451] United States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973).

[452] 28 U.S.C. § 1827 (1978).

[453] See, e.g., California State Constitution, Article 1, § 4; New Mexico State Constitution, Article 11, § 14; D.C. Code § 31-2701-12; Minnesota Rules of Criminal Procedure; Utah Code of Judicial Administration, Rule 3306; Virginia Criminal Code, Chapter 402, § 19.2-164; Washington Code, Chap. 2.43.

Sixth Circuit

POST CON RELIEF - GROUNDS - INTERPRETER
Deitz v. Money, 391 F.3d 804 (6th Cir. Dec. 13, 2004, as amended Dec. 20, 2004) (reversing district court's dismissal of habeas corpus petition based on four constitutional claims, (1) trial counsel was ineffective for failing to file direct appeal; (2) appellate counsel was ineffective for not raising potential winning issues on appeal, specifically the authorities' failure to (a) provide an interpreter for Deitz during the taking of his plea, (b) advise Deitz of potential immigration consequences of a guilty plea, required by Ohio Rev. Code 2943.031, and (c) notify Deitz of his right to contact the Mexican consulate, required by Article 36 of the Vienna Convention of Consular Relations, and directing district court to decide the ineffective assistance claims on their merits, since ineffective assistance of counsel constitutes cause to excuse a procedural default: "Given that Dietz's claim of ineffective assistance of counsel is not procedurally defaulted, that he has alleged facts that can establish cause for his failure to file a direct appeal, and that prejudice would be presumed, he is entitled to habeas relief if he can in fact prove that he asked his attorney to file a timely appeal and that the attorney failed to do so.").

POST CON RELIEF - LANGUAGE/CULTURE - MIRANDA
United States v. Short, 790 F.2d 464 (6th Cir. 1986) (statements by German defendant found involuntary due to limited language ability and no understanding of US criminal system). United States v. Garibay, 143 F.3d 534, 537 (9th Cir. 1998) (statements by Mexican defendant found involuntary due to language and verbal IQ difficulties). United States v. Castorena-Jaime, 117 F.Supp.2d 1161 (D. Kan. 2000) (defendants understanding of English insufficient to comprehend Miranda warning given). United States v. Fung, 780 F. Supp. 115 (E.D.N.Y. 1992) (Chinese defendant not given proper Miranda warning when only asked to read Chinese Miranda card). United States v. Kim, 803 F. Supp. 352 (D. Haw. 1992) (written Miranda warning showing defendant had circled a number of words he did not understand deemed insufficient given defendants limited understanding of English). People v. Mejia-Mendoza, 965 P.2d 777, 778-781 (Colo.1998) (Miranda warning given through interpreter insufficient where interpreter mistranslated warning, did not ask noncitizen if meaning was clear, and reported to police that defendant had waived rights when defendant had not actually done so). People v. Jiminez, 863 P.2d 981 (Colo. 1993) (Miranda waiver invalid where English and Spanish understanding where very limited, and native language did not have a word for legal "right"). State v. Jenkins, 81 S.W.3d 252 (Tenn. Crim. App. 2002) (Miranda warning founds in absence of proof that translation of warning was accurate). State v. Ramirez, 732 N.E.2d 1065 (Ohio Ct. App. 1999) (Spanish translation of Miranda warning was confusing and incomplete). People v. Diaz, 140 Cal.App.3d 813, 820 (Cal. Ct. App.1983) (if native language lacks single word to describes a Miranda right, officer must explain the right until sure the defendant fully understands). State v. Turkenich, 529 N.Y.S.2d 385, 137 A.D.2d 363 (1988) (interrogation of Russian defendant in hospital found coercive when "accentuated by the defendants recent immigration to the United States from a country with a vastly different political structure and by his inability to speak or understand the language of his inquisitor."). United States v. Castorena-Jaime, 285 F.3d 916 (10th Cir. 2002) (suggesting police should not use co-defendants to translate Miranda warnings).

Ninth Circuit

POST CON RELIEF - GROUNDS - INTERPRETER - INVALID TRANSLATION OF RIGHT TO JURY TRIAL
United States v. Bailon-Santana, ___ F.3d ___ (9th Cir. Dec. 6, 2006) (invalid jury waiver since defendant waived jury after attorney translated waiver form he was not qualified to translate).
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/8A8722340251FBF8882570CE00824A7D/$file/0450079.pdf?openelement

POST CON RELIEF - GROUNDS - PLEA AND SENTENCE -- DUE PROCESS - IMMIGRATION COURTS NOT REQUIRED TO PROVIDE TRANSLATION OF HEARING NOTICES
Khan v. Ashcroft, 374 F.3d 825 (9th Cir. July 2, 2004) (due process does not require immigration courts to translate notice of hearing into a language respondent understands).