Criminal Defense of Immigrants

An interpreter is essentially a witness, swearing under oath as to the meaning in one language of statements made in another language.  As with all witnesses, bias is highly relevant.  In fact, a person who is biased should not be allowed to serve as an interpreter.[69]  Canon 2 of the Canons of Ethics for Interpreters provides:

                Canon 2. Impartiality and Conflicts of Interest

Court interpreters and translators are to remain impartial and neutral in proceedings where they serve, and must maintain the appearance of impartiality and neutrality, avoiding unnecessary contact with the parties.  Court interpreters and translators shall abstain from  comment on cases in which they serve. Any real or potential conflict of interest shall be immediately disclosed to the Court and all parties as soon as the interpreter or translator becomes aware of such conflict of interest. 

Especially where competent interpreters in a given language are scarce, counsel must consider directing an interpreter not to provide interpreting services for the government or another defendant in the same or a significantly related case. Counsel must also consider whether it is proper to use an interpreter for a defendant when that interpreter has previously worked for an opposing party such as the government, or a codefendant with a potential or actual conflict of interest with the defendant.  These questions are difficult, and may have to be researched by resort to the overlapping areas of privilege, attorney professional ethics, interpreter professional ethics, confidentiality, and conflict of interest.[70]

The cleanest decision would be to refrain from “sharing” interpreters, or employing interpreters that have previously worked for co-defendants or parties that have likely conflicts of interest with the client. It would also be reasonable to instruct the interpreter not to accept employment from these parties.  Some interpreters may take the position that they can wear these different hats as their codes of ethics require confidentiality and non-disclosure of information obtained while performing interpreting duties.99

                It seems self-evident that a family relationship between an interpreter and the victim of the crime on trial would result in an improper bias on the part of the interpreter, but one court upheld a conviction under these circumstances.[71]

The defendant has a right to an impartial interpreter, and under some canons of ethics, the interpreter – like the judge – should be free even of the appearance of partiality.  This means the interpreter not be appointed if s/he has a significant relationship to the parties or attorneys or an interest in the outcome of the proceeding.[72]  Some jurisdictions require a court to determine that no disinterested interpreter is available before appointing an interested interpreter.[73]   They may, however, allow the court to appoint a family member or other interested party to serve as interpreter if no disinterested interpreter can be found.[74]  Similarly, no per se rule bars the appointment of an interpreter who has been associated with the prosecution.[75]  If the court must appoint an interested interpreter, it should determine the extent of any bias on the record and admonish the interpreter to interpret accurately.[76] 

[69] See generally Annot., Disqualification for Bias of One Offered as Intepreter of Testimony, 6 ALR4th 158 (1981).

[70] State v. Tamez 506 S.2d 531 (La. App. 1987) (guilty plea reversed where defendant’s codefendant served as the interpreter for plea); but see State v. Van Tran 864 S.W. 2d 465 (Tenn. 1993) (capital case affirmed despite interpreter’s kinship with victims and allegations of interpreter error).

[71] State v. Van Tran, 864 S.W. 2d 465 (Tenn. 1993) (capital case affirmed despite interpreter’s kinship with victims and allegations of interpreter error).

[72] See United States v. Ball, 988 F.2d 7, 9-10 (5th Cit. 1993); Henry v. State, 462 S.E.2d 737, 743 (Ga. 1995); State v. Tamez, 506 So.2d 531, 533 (La. Ct. App. 1987); In re R.R., 398 A.2d 76, 86 (N.J. 1979); In re James L., 532 N.Y.S.2d 941, 942 (N.Y. App. Div. 1988); State v. McClellan, 286 S.E.2d 873, 875 (N.C. App. 1982); State v. Heck Van Tran, 864 S.W.2d 465, 476 (Tenn. 1993); State v. Kan Ting Fung, 907 P.2d 1192, 1195 (Utah Ct. App. 1995); State v. Cervantes, 814 P.2d 1232, 1234-35 (Wash. Ct. App. 1991). But cf. Commonwealth v. Riley, 512 A.2d 22, 24 (Pa. Super. Ct. 1986) (“Even though it may be preferable to use an interpreter unacquainted with the witness, case law has not shown it to be a requirement.”).

[73] See Balderrama v. State, 433 So.2d 1311, 1313 (Fla. Dist. Ct. App. 1983); Ozuna v. State, 703 N.E.2d 1093, 1099 (Ind. Ct. App. 1998); State v. Tranh Van Pham, 675 P.2d 848, 859 (Kan. 1984); Tamez, 506 So.2d at 533; R.R., 398 A.2d at 86; James L., 532 N.Y.S.2d at 942.

[74] See Ball, 988 F.2d at 10; State v. McClellan, 286 S.E.2d 873, 875 (NC. Ct. App. 1982); Heck Van Tran, 864 S.W.2d at 476. But see Wash. Rev. Code § 2.42.130(2) (prohibiting court, from appointing relative of any participant as interpreter for deaf party or witness).

[75] See Kim Long Ko v. United States, 722 A.2d 830, 835-36 (D.C. 1998) (en banc) (per curiam), cert. denied, 119 S.Ct. 1512 (1999); Ozuna, 703 N.E.2d at 1099; Commonwealth v. Bui, 645 N.E.2d 689, 695-96 (Mass. 1995); Kan Ting Pung, 907 P.2d at 1195; State v. Bell, 788 P.2d 1109, 1113-14 (Wash. Ct. App. 1990); cf United States v. Arbelaez, 719 F.2d 1453, 1460-61 (9th Cir. 1983) (holding that defendant had failed to show prejudice from DEA employment of his former interpreter).

[76] See R.R., 398 A.2d at 86; In re James L., 532 N.Y.S.2d at 942.