As a first priority, defense counsel must ask the client or witness whether s/he wishes to have the assistance of an interpreter assist in communicating with counsel.  Most defendants or witnesses will know whether language assistance is necessary.  It is important, however, for counsel independently to evaluate whether the client or witness is able to communicate adequately in English with counsel.  Many clients and witnesses indicate that an interpreter is not necessary, out of a desire to avoid causing any inconvenience, when, in fact, an interpreter could greatly aid in the necessary communication.  It is very important to make sure an interpreter is available if there is any chance whatsoever the interpreter could be of assistance.  At least use an interpreter to explore further the need for an interpreter, so the communication on that important question is of the highest quality.  If only imperfect communication is used to determine the need for an interpreter, the wrong decision could easily be reached.  It is very common for a noncitizen to be able to speak basic English, but not to have the skills to understand the level of English used in court or in a legal discussion with counsel, where great precision of communication is necessary.

 

Once the decision is made to seek the assistance of an interpreter, counsel must decide on the necessary qualifications the interpreter must have for this particular case.  Do not assume an interpreter appointed by the court has sufficient language skills without double-checking on them.  Counsel can consider asking the client the following questions to determine the necessary language skills the interpreter must possess:

 

                Questions for Client to Assess Need for Interpreter

 

                (1)  Please tell the court your name and address.

 

(2)  Please tell the court when your birthday is, how old you are, and where you were born?

 

                (3)  Where were you raised as a child?

 

                (4)  Where have you lived and for how long?

 

                (5)  How long have you lived in the United States?

 

                (6)  What language(s) and dialect(s) do you speak?

 

                (7)  What is the level at which you speak each language? 

 

                (8)  Please describe when and how you learned English?

 

(9)  What is your educational history, in the United States and in your home country?

 

(10)  Do you read and write English?  Please tell us the last book, magazine, or newspaper you read in English.

 

(11)  Please define these terms: bail, arrest, prosecutor, charge, evidence (and other relevant legal terms).

 

                (12)  Please describe for me some of the people you see in the courtroom.

 

(13)  Please tell me how comfortable you are understanding and speaking English.

 

                It may be necessary to consult an expert, and have the client’s ability to understand and read English evaluated through testing, to obtain evidence concerning the need for an interpreter.[46]  If it is necessary to prove the client’s need, either to have an interpreter appointed by the court or during post-conviction proceedings, counsel can seek school records of the client in the United States or abroad that may demonstrate English proficiency, such as English as a Second Language courses.  These records may provide a more reliable indication of the client’s ability to read and understand spoken English, especially if the courses occurred before the criminal case.  Evidence of a lack of English proficiency before the criminal case will avoid the possibility that a suspicious minded prosecutor or judge will believe the defendant is pretending to know less English than is truly the case. 

[46] If language proficiency becomes an issue, counsel should have the client’s language proficiency tested by a qualified linguist.

Second Circuit

CRIM DEF - INTERPRETER
Diaz v. Kelly, 515 F.3d 149 (2d Cir. Jan. 25, 2008) (the need for an interpreter might not apply if petitioner does not take sufficient action to secure assistance).