Criminal Defense of Immigrants

 

One person cannot simultaneously serve two masters.  Legal interpretation is a very challenging job.  It is not possible to perform it adequately if the interpreter is also asked to serve a different function at the same time.  For example, it is improper for an interpreter simultaneously to serve as defense counsel.  It is impossible for one interpreter to serve as defense interpreter, to assist counsel to consult with the client, and at the same time interpret a foreign-language witness’ testimony for all in the courtroom to hear.  It is impossible for one interpreter to serve simultaneously to assist two different defendants to speak privately with two different defense counsel.  It is impossible for one interpreter to translate the English language court proceedings into a foreign language for the defendant, and at the same time assist defendant and counsel to communicate privately.

 

                The courts have recognized the defendant’s right to an individual interpreter, but not invariably.[91]  As Kay, Ramirez and Hill have stated: [92]

 

                Two issues frequently arise in the process of appointing an interpreter: (1) whether the defendant has a right to an interpreter separate from the interpreter or interpreters used by her codefendants; and (2) whether the defendant has a right to an interpreter separate from the interpreter used by the court to translate testimony. Generally, the federal courts have held that the Court Interpreters Act does not require separate interpreters for each defendant in multi-defendant cases.[93]  The Sixth Circuit has explained that “a personal interpreter should be provided if the district court were to make a finding of direct conflict between defendants because their respective positions were so diverse, such as in an alibi defense.”[94]  To establish an entitlement to an individual, in-court interpreter in federal court under this standard, counsel must be prepared to demonstrate to the court, in advance, the existence of a significant conflict of interest between the client and her co-defendants.

 

In contrast to the federal scheme, in California, a shared interpreter during any portion of proceedings will constitute error absent a waiver.[95]  Other jurisdictions may allow multiple interpreters as the needs of the case warrant.[96]  Interpreters themselves, however, have made the observation that having multiple interpreters is distracting to jurors and may affect the outcome of a case.

 

A separate issue that arises regarding interpreters during trial involves whether to allow the interpreter working with the defendant to be used for other trial proceedings or witnesses. Ideally, a defendant would have two interpreters: one to interpret the proceedings and one to interpret attorney-client communications. Several courts have held that neither the statutory right to an interpreter nor the Sixth Amendment right to counsel is violated by the appointment of a single interpreter, as long as the defendant can both understand the proceedings and communicate with her attorney.[97] This standard is violated, however, when the court “borrows” the interpreter working with the defendant to interpret a non-English-speaking witness’ testimony for the court because, even assuming that the defendant can understand the testimony of the witness, the defendant cannot communicate with counsel.[98]

 

Some courts have stated that interpreter “borrowing” does not necessarily violate the Sixth Amendment if the court takes recesses to allow attorney-client communication.[99]  The principal argument against this position is that it imposes a burden on non-English-speaking defendants and their counsel to risk alienating the judge and jury by interrupting the proceedings that English-speaking defendants do not face.[100]  Therefore, a number of courts have indicated that using two interpreters, at least for part of the trial, is the better practice.[101] Counsel should object to any attempt by the court to deprive her client of attorney-client communication, even for a brief period.[102]

 

                On appeal, co-defendants in one case argued that their rights under the Court Interpreters Act[103] and the Sixth Amendment were violated because each was not provided with an individual interpreter throughout the trial.  The court concluded that nothing in the Act or its legislative history required every defendant in a multi-defendant proceeding to be provided with an individual interpreter. “To the contrary, the Act itself authorizes the use of a single interpreter in multi-defendant cases. Section 1828(a) directs the United States Courts to establish a program to “provide a capacity for simultaneous interpretation services in multi-defendant criminal actions . . . .”  Despite its holding , the court noted that a situation may arise where multiple defendants should each be provided with a personal interpreter in order to fulfill the Act’s requirements.[104]

 

                The fact that the courts do not yet accept the need for an individual interpreter who has only one job at a time does not mean counsel should not press for expansion of these rights, making a detailed record of every disadvantage and form of prejudice caused by the court’s failure to fully respect the right to an interpreter.

 

[91] United States v. Bennett, 848 F.2d 1134 (11th Cir. 1988) (using abuse of discretion standard, court of appeals rejected claim that appointment of one interpreter for multiple defendants was not sufficient to allow individual defendants to communicate with counsel, where trial court provided “ample opportunity” to the defendants by offering to “recess the proceedings at any time they needed to consult their attorneys through the interpreter.”).

[92] Kay, Ramirez & Hill, Using Interpreters, in J. Connell & R. Valladares, eds., Cultural Issues in Criminal Defense 2-1, 2-20 to 2-22 (Juris Publishing 2000).  The footnotes within the quotation are from the article quoted, but have been renumbered consecutively with the footnotes in this chapter to avoid confusion.

[93] See United States v. Yee Soon Shin, 953 F.2d 559, 561 (9th Cir. 1992); United States v. Sanchez, 928 F.2d 1450, 1455 (6th Cir. 1991); United States v. Bennett, 848 F.2d 1134, 1140-41 (11th Cir. 1988); cf United States v. Carrion, 488 F.2d 12, 15 n.* (1st Cir. 1973) (dictum) (suggesting, prior to enactment of the Court Interpreters Act, that court use single interpreter in multi-defendant trial to avoid differing versions of the same testimony); Castellon v. Whitley, 739 F. Supp. 526, 528 (D. Nev. 1990) (holding that use of two interpreters for multiple defendants did not violate the Sixth Amendment).

[94] See Sanchez, 928 F.2d at 1455. In Sanchez, the court summarized a court’s duty to assess the need for individual interpreters as follows: “In holding that the Interpreters Act did not require each defendant in this case be provided with a personal interpreter, we do not suggest that a situation will never arise where multiple defendants should each be provided with a personal interpreter in order to fulfill the requirements of the Act. For example, . . . If such a situation should arise where the district court thinks the purposes of the Act cannot be met utilizing a single interpreter in a multi-defendant case, the district court need only seek approval under the Criminal Justice Act for the appointment of any additional interpreters. When utilizing a single interpreter during a multi-defendant action, the district court must always be cognizant of the underlying purposes of the Act. The district court must provide each defendant the time and the ability to confer effectively with counsel throughout the proceedings. In cases where there are a significant number of defendants, this will require the district court to grant defense ample time during trial to confer with an individual defendant who wishes to communicate with counsel, separate and apart from all other defendants.”

[95] See People v. Chavez, 283 Cal. Rptr. 71, 74 (Cal. App. 1991).

[96] See Policies for Interpreted Proceedings in the Courts of the State of Hawaii 1(A).

[97] See United States v. Bennett, 848 F.2d 1134, 1141 (11th Cit. 1988); United States v. Jong Moon Lim, 794 F.2d 469, 471 (9th Cit. 1986) (per curiam); Castellon, 739 F. Supp. at 527-28; People v. Colon, 623 N.Y.S.2d 633, 634 (N.Y. App. Div. 1995); cf. People v. Hammons, 771 P.2d 1, 2 (Colo. Ct. App. 1988) (holding that statute entitled defendant to only one interpreter without discussing ability to communicate).

[98] See People v. Mata Aguilar, 677 P.2d 1198, 1201 (Cal. 1984); People v. Carreon, 198 Cal. Rptr. 843, 850-51 (Cal. Ct. App. 1984); see also People v. Avila, 797 P.2d 804, 806 (Colo. Ct. App. 1990) (recognizing risk of Sixth Amendment violation when court “borrows” defense interpreter, but finding no violation where court “borrowed” interpreter for only eight short questions).

[99] See United States v. Sanchez, 928 F.2d 1450, 1455 (6th Cir. 1991); United States v. Joshi, 896 F.2d 1303, 1311 n.8 (11th Cir. 1990); Castellon, 739 F. Supp. at 528; Martinez Chavez v. State, 534 N.E.2d 731, 737 (Ind. 1989); People v. Colon, 623 N.Y.S.2d 633, 634 (N.Y. App. Div. 1995); State v. Gonzales-Morales, 958 P.2d 339, 342-43 (Wash. App. 1998). But cf. Ferrell v. Estelle, 568 F.2d 1128, 1133 (5th Cir. 1978) (holding that failure to explore adequate means of communication violated deaf defendant’s Sixth Amendment rights where defendant’s counsel did not take advantage of offer for unlimited recesses).

[100] See Carreon, 198 Cal. Rptr. at 850; cf. United States ex rel. Navarro v. Johnson, 365 F. Supp. 676, 682 n.3 (E.D. Pa. 1973) (noting that interruption may be impractical). But see Gonzales-Morales, 958 P.2d at 342-43 (rejecting chilling effect argument).

[101] See Navarro, 365 F. Supp. at 682 n.3; Mata Aguilar, 677 P.2d at 1203; Carreon, 198 Cal. Rptr. at 850; Avila, 797 P.2d at 806; State v. Munoz, 659 A.2d 683, 697 (Coon. 1995); State v. Tranh Van Pham, 675 P.2d 848, 859-60 (Kan. 1984); State v. Nghia Gia Dam, 825 P.2d 286, 288 n.1 (Or. Ct. App. 1992); State v. Santiago, 556 N.W.2d 687, 695 (Wis. 1996); see also Policies for Interpreted Proceedings in the Courts of the State of Hawaii 1(A).

[102] Kay, Ramirez & Hill, Using Interpreters, in J. Connell & R. Valladares, eds., Cultural Issues in Criminal Defense 2-1, 2-20 to 2-22 (Juris Publishing 2000).  The footnotes within the quotation are from the article quoted, but have been renumbered consecutively with the footnotes in this chapter to avoid confusion.

[103] 28 U.S.C. § § 1827-28.

[104] United States v. Sanchez, 928 F.2d 1450 (6th Cir. 1991).