Criminal Defense of Immigrants

(B)  Interpreters in State Court.  More and more jurisdictions are enacting statutes and constitutional provisions guaranteeing the right to an interpreter in criminal proceedings.[65]  Many states that recognize the right to an interpreter provide little guidance in the process of selecting a qualified interpreter.  A few states, like the federal government, require the use of a certified interpreter, unless one is not available.[66]  Other states allow any competent person to act as an interpreter without preference for certified interpreters.[67]   When the task of determining who may serve as an interpreter is left to the trial court judge, a defendant can end up with an incompetent interpreter or no interpreter at all.  As a defense lawyer it may be necessary to insist on the appointment of a competent interpreter.

[65] E.g., 28 U.S.C. § 1827 (1996); Ala. Code 1975 § 15-1-3 (2000) (“If at any stage of a criminal or juvenile proceeding the defendant, juvenile, or a witness informs the court that he or she does not speak or understand the English language, the court may appoint an interpreter.”); Ark. Code Ann. § 16-89-104 (2001) (“Every person who cannot speak or understand the English language or who because of hearing, speaking, or other impairment has difficulty in communicating with other persons, and who is a defendant in any criminal action or a witness therein, shall be entitled to an interpreter to aid the person throughout the proceeding.”); Cal. Const. art. I, § 14 (“A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.”); D.C. Code § 2-1902 (2004) (“Whenever a communication-impaired person is a party or witness . . . is brought before a court at any stage of a judicial or quasi-judicial proceeding . . . the appointing authority may appoint a qualified interpreter to interpret the proceedings to the communication-impaired person and to interpret the communication-impaired person’s testimony); Fla. Stat. Ann. § 90.606 (1997) (“When a judge determines that a witness cannot hear or understand the English language, or cannot express himself or herself in English sufficiently to be understood, an interpreter who is duly qualified to interpret for the witness shall be sworn to do so.”); Idaho Code § 9-205 (2004) (“In any civil or criminal action in which any witness or a party does not understand or speak the English language, or who has a physical handicap which prevents him from fully hearing or speaking the English language, then the court shall appoint a qualified interpreter to interpret the proceedings to and the testimony of such witness or party.”); Kan. Stat. Ann. § 75-4351 (2003) (“A qualified interpreter shall be appointed in the following cases for persons whose primary language is one other than English . . . .”); Minn. Stat. § 611.30 (2003) (“It is hereby declared to be the policy of this state that the constitutional rights of persons handicapped in communication cannot be fully protected unless qualified interpreters are available to assist them in legal proceedings.”); N.M. Stat. Ann. § 38-10-3 (1985) (“[I]f a non-English speaking person who is a principal party in interest or a witness has requested an interpreter, the appointing authority shall appoint, after consultation with the non-English speaking person or his attorney, an interpreter certified pursuant to the Court Interpreters Act to interpret or to translate the proceedings to him and to interpret or translate his testimony.”); Or. Rev. Stat. § 133.515 (2003) (inability to readily understand or communicate in English is viewed as making a person “disabled” under this statute); S.C. Code Ann. § 17-1-50 (2004) (“[W]henever a party, witness, or victim in a criminal legal proceeding does not sufficiently understand or speak the English language to comprehend the proceeding or to testify, the court must appoint a certified or otherwise qualified interpreter to interpret the proceedings to the party or victim or to interpret the testimony of the witness.”); Tex. Code Crim. P. art. 38.30 (2004) (“When a motion for appointment of an interpreter is filed by any party or on motion of the court, in any criminal proceeding, it is determined that a person charged or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for the person charged or the witness.”); Utah Code Jud. Admin. R. 3-306 (1997); Wash. Rev. Code § 2.43 (1989) (“It is hereby declared to be the policy of this state to secure the rights, constitutional or otherwise, of persons who, because of a non-English-speaking cultural background, are unable to readily understand or communicate in the English language, and who consequently cannot be fully protected in legal proceedings unless qualified interpreters are available to assist them.”); Wis. Stat. Ann. § 885.37 (2004) (“If a municipal court has notice that a person . . . who is a witness in a proceeding . . . has a language difficulty because of the inability to speak or understand English, has a hearing impairment, is unable to speak or has a speech defect, the court shall make a factual determination of whether the language difficulty or the hearing or speaking impairment is sufficient to prevent the individual from communicating with his or her attorney, reasonably understanding the English testimony or reasonably being understood in English.”).

[66] See Ark. Code Ann. § 16-10-127(c); Cal. Gov’t Code § 68561; N.M. Stat. Ann. § 38-10-3; Or. Rev. Stat. 45.288(1); Wash. Rev. Code § 2.43.030(1)(b); cf. Choi v. State, 497 S.E.2d 563, 565 (Ga. 1998) (explaining that certification is not required for interpreters, but describing a state-approved registry of interpreters). Some states require certified interpreters for the deaf, with no statutory exception. See Ariz. Rev. Stat. § 12-242(A), (H)(2); Cal. Evid. Code § 754(b)(1); Conn. Gen. Stat. § 46a-33(a) to (b)(l); Tex. Crim. P. Code § 38.31(a), (g)(2). Others have adopted exceptions that allow use of an uncertified interpreter for the deaf if a certified interpreter is not available. See Ala. Code § 12-21-13 1(b); Miss. Code Ann. § 13-1-301(b); N.Y. Jud. Law § 390; NC. Gen. Stat. § 8B-l(3); OkIa. Stat. tit. 63, § § 2408(2), 2409(B); Tenn. Code Ann. § 24-1-103 (a)(3).

[67] See Policies for Interpreted Proceedings in the Courts of the State of Hawaii 1(D); see also State v. Tones, 368 S.E.2d 609, 611 (N.C. 1988); Mendiola v. State, 924 S.W.2d 157, 161 (Tex. App. 1995). For similar statutes governing interpreters for the deaf, see Fla. Stat. ch. 90.6063(3)(b); Wash. Rev. Code § 2.42.110(2).