Criminal Defense of Immigrants

(A)  Interpreters in Federal Court.  The Court Interpreters Act[57] governs the manner of providing for qualified interpreters for criminal defendants in federal court.[58]  It distinguishes between certified interpreters and otherwise qualified interpreters.[59]  The Act authorizes a national program for certification of court interpreters,[60] administered by the Director of the Administrative Office of the United States Courts. The director is required to prescribe, determine, and certify the qualifications of persons who may serve as interpreters.[61]

The Administrative Office of the United States Courts administers a certification examination biannually for Spanish, Navajo, and Haitian Creole speakers, which consists of an oral and a written portion and tests the interpreter’s ability in both English and the foreign language. This examination is very difficult, even for experienced interpreters, and only a small percentage of those who take the examination receive certification.  As a consequence, there is an acute shortage of certified interpreters; “otherwise qualified” interpreters as defined by the Act and implementing regulations are often utilized in federal court.[62]

Only when no certified interpreter is not reasonably available may the services of “otherwise qualified” interpreters be used.[63]  Interim Court Interpreter Regulations of the Administrative Office of the United States Courts implementing the act define “otherwise qualified” interpreters and divide them into two categories: “professionally qualified interpreters” and “language skilled interpreters.”

An interpreter can be considered “professionally qualified” if the interpreter has passed an examination to interpret for the U.S. State Department or the United Nations, or for any related agencies for which examinations are a condition of employment.  A second way to be professionally qualified is through membership in a professional interpreters association whose bylaws require certain minimum standards specified in the section 8(a)(ii)(A) and (B) of the Interim Regulations. “Language skilled” interpreters are defined as an interpreter who can demonstrate to the satisfaction of the court the ability to interpret court proceeding from English to a designated language and from that language to English.  The interim regulations give no guidance as to how the court should go about determining whether the interpreter has such ability.[64]

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

[58] The Act also applies to civil forfeiture cases and any other litigation initiated by the government.  See generally R. Gonzalez, Federal Court Interpreter Certification Examination Manual (U. Ariz. 1986).

[59] 28 U.S.C. § 1827(b)(2).

[60] 28 U.S.C. § 1827(b).

[61] 28 U.S.C. § 1827(b).  See also Selzer v. Foley, 502 F. Supp. 600, 603 (S.D.N.Y. 1980).

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

[63] 28 U.S.C. § 1827(b)(2).

[64] Interim Regulations of the Director of the Administrative Office of the United States Courts Implementing the Court Interpreters Amendments Act of 1988 (Nov. 16, 1989).