Criminal Defense of Immigrants

(C)  Attorney as Interpreter.  The defense attorney should never serve as interpreter in a case in which s/he is acting as counsel, since a bilingual attorney has not generally been trained or certified as an interpreter.  “It is cognitively impossible to perform both the role of interpreter and attorney simultaneously and competently.  (Citation omitted.)  When a bilingual attorney also serves as the interpreter, the client’s right to both competent interpretation and legal counsel is essentially forfeited.”[39]  Having counsel who speaks the defendant’s language does not satisfy the defendant’s right to an interpreter.[40]  In addition, the case law has recognized that an attorney cannot simultaneously examine witnesses, make objections, and pay close attention to the proceedings while interpreting the proceedings to the defendant.[41]  As one court stated: “For defense counsel to cross-examine witnesses, listen attentively to testimony and objections of the prosecuting attorney and hear rulings and remarks of the presiding judge and simultaneously render an accurate and complete translation to his three clients, is an impossible task. The effectiveness of defense counsel under those circumstances is obviously greatly impaired to the serious detriment of his clients’ defense.”[42] 

                In People v. Chavez, the defendant’s attorney, who spoke some Spanish, acted as interpreter for a non-English-speaking defendant during a number of court appearances.[43]  The California appellate court held the defendant was denied both the right to an interpreter under the California Constitution “throughout the proceeding” as well as the right to counsel.[44]

                Another court held a defendant was denied his constitutional right to receive interpreter assistance throughout the proceedings, when he was left entirely without an interpreter during portions of the preliminary proceedings dealing with his competence to stand trial, and when his defense attorney functioned as an interpreter for parts of the trial. “[A] right to an interpreter is effectively denied when a defense attorney must discharge the function, and … the right to counsel may be significantly impaired when he does.”[45]  The work of an interpreter is so demanding that it is effectively impossible for counsel to perform that task competently while performing the equally difficult task of defending his or her client.

[39] R. Gonzalez, V. Vásquez, & H. Mikkelson, Fundamentals Of Court Interpretation: Theory, Policy, And Practice 51 (Durham, N.C.: Carolina Academic Press,  1991).

[40] See State v. Rios, 539 P.2d 900, 901 (Ariz. 1975) (en banc); State v. Gonzalez-Gongora, 673 S.W.2d 811, 818 (Mo. Ct. App. 1984); Baltierra, 586 S.W.2d at 559 n.11.  But see United States v. Martinez, 616 F.2d 185, 188 (5th Cir. 1980).

[41] See State v. Rios, 539 P.2d 900, 901 (Ariz. 1975) (en banc); People v. Chavez, 177 Cal. Rptr. 306, 310 (1981), overruled on other grounds, People v. Mendez, 19 Cal.4th 1084 (1999); Baltierra v. State, 586 S.W.2d 553, 559 n. 11 (Tex. Crim. App. 1979) (en banc).  See generally Bill Piatt, Attorney as Interpreter: A Return to Babble, 20 N.M. L. REV. 1 (1990).

[42] State v. Rios, 539 P.2d 900 (Ariz. 1975) (trial court relied on bilingual defense counsel to interpret, but Arizona Supreme Court reversed for violation of defendant’s rights to confrontation, cross-examination and effective assistance of counsel).

[43] See Chavez, supra, 177 Cal. Rptr. at 310.

[44] Id. at 313.

[45] State v Kounelis, 258 N.J. Super. 420 (1992) (conviction of a Greek-speaking defendant reversed and remanded; bilingual counsel acting as interpreter was insufficient to uphold the defendant’s rights). See also Giraldo-Rincón v. Dugger, 707 F. Supp. 504 (M.D. Fla. 1989) (despite bilingual defense counsel, judge’s refusal to inquire into petitioner’s need for, and ability to pay, an interpreter violated Fifth, Sixth and Fourteenth Amendments).