Criminal Defense of Immigrants

A confidential communication between attorney and client does not lose the protection of the attorney-client privilege when it is made via a foreign-language interpreter for the purpose of assisting the attorney in rendering advice to the client. [109]  The normal limits of the privilege, of course, apply to consultations at which an interpreter is assisting.  For example, the privilege applies only to confidential communications made for the purpose of securing legal advice or assistance.[110]  The privilege depends on whether the client had a reasonable expectation of confidentiality under the circumstances in which the communication occurred, and so would not extend to any communica­tions overheard by the interpreter while the interpreter is not acting in an official capacity since the client would have no cognizable expectation of confidentiality under those circumstances.[111]

                Some states expressly extend the attorney-client privilege of confidentiality to interpreters if the communication that was interpreted is itself covered by attorney-client privilege.[112]  Privileges in federal criminal trials, however, are governed by federal common law.[113] Even without a statutory attorney-client privilege, however, the presence of an interpreter does not eliminate the attorney-client privilege that otherwise applies to a confidential communication.[114]

                Some interpreters may feel that being viewed as a member of the defense team violates interpreter ethical codes requiring neutrality. [115]  This reservation, however, should be less of a concern if the interpreter is expressly serving as a defense interpreter, because then the court and jury are not relying on the impartiality of the interpreter, and the appearance of bias toward the defendant will not undermine the function of the interpreter as a defense interpreter; on the contrary, it will be of assistance.

[109] See United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir. 1995); United States v. Koveb, 296 F.2d 918, 921 (2d Cir. 1961).  See generally Annot., Persons Other Than Client or Attorney Affected by, or Included Within Attorney-Client Privilege, 96 ALR2d 125 (1964).

[110] See United States v. White, 617 F.2d 1131, 1135 (5th Cir. 1980).

[111] Grabau & Gibbons, Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation, 30 New England L. Rev. 227, 271 & n.193 (1996).

[112] See, e.g., D.C. Code Ann. § 3 1-2707; Kan. Stat. Ann. § 75-4354; Or. Rev. Stat. § 40.273; Va. Code Ann. § 19.2-164 to -164.1.  For statutes extending confidentiality to communications though interpreters for deaf defendants, see Ariz. Rev. Stat. § 12-242(E); Fla. Stat. § 90.6063(7); Ga. Code Ann. § 24-9-107(b); Me. Rev. Stat. Ann. tit. 5, § 48; Mass. Gen. Laws ch. 221, § 92A; Mich. Comp. Laws § 393.506(2); Tex. Crim. P. Code Ann. § 38.31; Tex. Hum. Res. Code § 82.002; see also Alice J. Baker, Sign Language Interpreters and Testimonial Privileges, 2 Va. J. Soc. Pol’y & L. 165, 174 & nn.37-38 (1994) (discussing state statutes extending attorney-client privilege to interpreters for the deaf).

[113] See Fed. R. Evid. 501.

[114] See 3 Weinstein’s Federal Evidence § 503.08 (2d cd. 1987); see also Alice J. Baker, Sign Language Interpreters and Testimonial Privileges, 2 Va. J. Soc. Pol’y & L. 165, 208 (1994).

[115] E.g., Canon 3, Code of Responsibility for Interpreters in the Judiciary, 30 N. England L. Rev. 353 (1996), reprinted as Appendix 3 in Moore & Mamiya, Interpreters in Court Proceedings, in J. Moore, editor, Immigrants in Courts 202 (Univ. of Washington Press 1999).  See also id. at 41 et seq. (Univ. of Washington Press 1999).