Criminal Defense of Immigrants


§ 4.3 A. In General

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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.[5]  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 defendant cannot speak or understand English.  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.[6]


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.[7]


                The right to an interpreter in federal courts was extended to all criminal proceedings through the passage of the Federal Court Interpreters Act.[8]  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.[9]  See § 4.36, infra.


                There are insufficient qualified interpreters to fill the increasing need.[10]   State and federal certification requirements are not uniform, and some states have no certification requirements at all.  Counsel therefore may have to be active in seeking a qualified interpreter for the client.


[5] See generally Annot., Interpreters, 36 A.L.R.3d 276 (1971), 32 A.L.R.5th 149; Annot., Use of Interpreter in Court Proceedings, 172 ALR 923 (1948).

[6] 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 a Spanish-speaking defendant).

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

[8] Court Interpreters Act of 1978, Pub. L. No. 95-539, 92 Stat. 2040 (1978) (codified at 28 U.S.C. § 1827) (1978).

[9] 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.

[10] See United States v. Mosquera, 816 F.Supp. 168, 171 (E.D.N.Y. 1993) (Weinstein, J.).




Matter of Thomas, 19 I. & N. Dec 464, 465 (BIA 1987) (presence of competent interpreter is essential for respondent's meaningful participation and fundamental fairness of hearing); see Tun v. Gonzales, 485 F.3d 1014, 1025-31 (8th Cir. 2007) (citing Matter of Thomas, and remanding on due process concerns where translation was problematic).

DC Circuit

The District of Columbia has a specific statute entitled the "Interpreters for Hearing-Impaired and Non-English Speaking Persons Act ("the Interpreter Act"), D.C. Code 2-1901 et seq. (2001), which requires an arresting officer to secure a qualified interpreter for a non-English speaker in custody before questioning that person. See Torres v. United States, 929 A.2d 880, (D.C Court of Appeals, Aug. 2007)