Criminal Defense of Immigrants


§ 4.27 1. Factual Record

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Counsel should attempt to use a tape recorder to record the interpretation so that it can become part of the record for appeal. The reporter’s transcript will only contain questions and answers after interpretation into English.  Use of a tape recorder will create a record for later appellate or post-conviction review in the event of conviction.[80]  The original foreign language testimony or statements of the defendant can later carefully be compared with the interpretation into English made by the interpreter, with assistance of another interpreter who can detect any errors, which can then be demonstrated to the satisfaction of the appellate or post-conviction court.  Visibly tape recording the interpretation would also likely improve the effort and diligence of the interpreter, who would be aware that their efforts could later be double checked for accuracy.


                If counsel anticipates that the court may deny the motion for an interpreter, s/he may wish to make the motion outside the hearing of the jury to avoid a negative inference that the defendant’s language difficulty is not authentic.[81]

[80] See Policies for Interpreted Proceedings in the Courts of the State of Hawaii I(E); see also Tex. Crim. P. Code § 38.3 1(a) (authorizing recording of sign language interpretation). Admittedly, appellate courts have been cool to any requirement of a non-English record. See People v. Braley, 879 P.2d 410, 413 (Colo. Ct. App. 1994) (“Any means of providing such a bilingual recording would necessarily be cumbersome and expensive.”); see also State v. Mendoza, 891 P.2d 939, 942 (Ariz. Ct. App. 1995) (no requirement of a sign-language transcript); Gonzales v. State, 819 P.2d 1159, 1161 (Idaho Ct. App. 1991) (no requirement of a foreign language transcript).

[81] See United States v. Mayans, 17 F.3d 1174, 1181 (9th Cit. 1994); Pana, 364 A.2d at 899.