Criminal Defense of Immigrants


§ 4.26 E. Making a Record

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As with all issues, defense counsel has a professional obligation to make a record of what happens in court for purposes of later motions and requests in the trial court, and for purposes of raising claims of error on appeal.  Issues of language interpretation pose special difficulties for counsel, since normally defense counsel does not speak the language the defendant speaks and cannot personally detect most errors in interpretation.  Aside from having a second interpreter present to detect and report errors of the primary interpreter, how can counsel detect errors in interpretation?


                Counsel’s personal observation may be able to detect whether the interpreter is providing the verbatim and complete interpretation required, or is merely paraphrasing and summarizing the foreign-language testimony or statements of the defendant.  A translation in some language, Spanish, for example, may require more words than the original English, but it may still be possible to tell whether the interpreter is providing a complete translation.  Unresponsive answers from the defendant to counsel’s questions, or from a witness in court, may signal inadequate interpretation.[79]


                Another valuable source of information is the defendant.  Defense counsel can ask the defendant if the interpretation is adequate, and if the defendant is able to understand the translation provided by the interpreter.  It will sometimes be possible for the attorney to ascertain, even independently of the interpreter, whether the defendant is actually understanding the proceedings.  Many defendants speak some English, although they may do so imperfectly and nonetheless require the assistance of an interpreter.


                It may be challenging for the interpreter accurately to translate questions and answers relating to the interpreter’s own competence.  This area may pose a conflict of interest akin to the conflict presented by a defendant’s motion attacking the competence of criminal defense counsel.  An interpreter with integrity will accurately translate these questions and answers.  It may not be too uncommon, however, for the interpreter to seek to protect their reputation and livelihood by shading the translation so as to minimize any problems the defendant expresses with their interpretation.


[79] E.g., Siong v. INS, 376 F.3d 1030  (9th Cir. 2004) (Hmong-speaking asylum applicant established plausible grounds for relief and hearing included faulty interpretation as manifested by unresponsive answers).