Criminal Defense of Immigrants

(A)  Specific Tasks. In order to protect the client’s rights, and communicate effectively with a non- or limited-English-speaking client, counsel must obtain the assistance of a competent interpreter solely dedicated to translating between attorney and client.  Make sure the interpreter speaks the same language and dialect as the client, that the interpreter is competent, and that the client can affirmatively understand the interpreter.[34]

                The first task is to determine whether a client who does not speak English well, or who speaks English as a second language, needs the assistance of an interpreter.  Counsel should ask the client whether the client would like an interpreter, but also independently determine whether communication would be enhanced.  Counsel should err on the side of caution, recognizing that clients who may have the ability to understand and communicate English on a daily level may not be able to understand the far more difficult English used in the legal context. 

                Counsel must also carefully select a qualified and neutral interpreter.  Potentially biased individuals such as family members or friends should not be used.[35]  If there is a certification process in the jurisdiction, it should be easy to obtain a listing of minimally qualified interpreters.[36]  Other sources include telephonic language line services,[37] or internet listings of regional and national interpreter organizations.[38] 

                Counsel must ensure that the interpreter speaks the same language and dialect as the defendant, not just a similar one.  Even a minor difference in a dialect can render a translation unreliable.  Be alert to signs that the client does not understand what is going on.  Interruptions to consult with counsel, statements that the defendant did not understand something, inappropriate responses to questions, and grammatical errors in statements made by the defendant may all provide evidence that the defendant did not understand something, thus demonstrating that an interpreter (or a different interpreter) may be required. 

[34] For a more complete discussion on all issues regarding interpreters, see Chapter 2, Using Interpreters, Cultural Issues in Criminal Defense (J. Connell & R. Valladares, eds., Juris Publishing 2000); Constance Emerson Crooker, the art of legal interpretation: A Guide for Court Interpreters (Portland State Univ. Press 1996).

[35] See e.g., Henry v. State, 462 S.E.2d 737, 743 (Ga. 1995); In re R.R., 398 A.2d 76, 86 (N.J. 1979).

[36] For example, the California Judicial Council maintains a Master List of certified and registered interpreters.  http://www.courtinfo.ca.gov/programs/courtinterpreters/

[37] For example, AT&T Language Line ServiceÔ provides access to interpreters for as many as 140 languages, although the interpreters are not necessarily certified.

[38] See, e.g., The National Association of Judiciary Interpreters and Translators (NAJIT) at http://www.najit.org/