Criminal Defense of Immigrants


§ 4.36 (A)

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(A)  Constitutional Law. The United States Supreme Court has never directly addressed the right to an interpreter in criminal cases as a constitutional issue, but many courts have upheld the right to competent interpretation as a constitutional requirement in criminal proceedings.  The right to a court interpreter for non- and limited-English speaking parties and witnesses is implicit in the Fifth, Sixth and Fourteenth Amendments of the United States Constitution.  See § 4.3, supra. 


                (1)  Confrontation.  One constitutional right implicated in the right to an interpreter is the right to confrontation.[120]


                (2)  Due Process.  Due process and the right to a fair trial are commonly held to have been violated by denial of the right to an interpreter.[121]  Although the court found defendant’s claim that the lack of interpreter during pretrial and trial proceedings did not deny him due process of law because the defendant spoke and understood English, it stated that “a defendant in a criminal proceeding is denied due process when: (1) what is told to him is incomprehensible; (2) the accuracy and scope of a translation at a hearing or trial is subject to grave doubt; (3) the nature of the proceeding is not explained to him in a manner designed to insure his full comprehension; or (4) a credible claim of incapacity to understand due to language difficulty is made and the district court fails to review the evidence and make appropriate findings of fact.”[122]


                (3)  Other Constitutional Rights.  Language problems can trigger violations of other constitutional rights.  For example, in a federal case, the government contended the defendant by his silence had waived his right to a jury trial implied and that he was without a remedy on appeal because he neither objected to the bench trial nor moved for a new trial after the error was discovered. The government further argued that although the requirement of a waiver in writing by Federal Rule of Criminal Procedure 23(a) had not been met, this case fell within a limited exception. The court of appeals, however, found this case did not fall within the exception to the Rule because: (1) the defendant’s testimony revealed that he was unable to speak or understand English; had only been in the United States a few days; did not understand the purpose of a jury; and (2) was not afforded an opportunity to voice his objection to the dismissal of a venire.[123]  In another case, inadequate interpretation failed to secure an informed waiver of rights necessary to enter a valid guilty plea.[124]  A defendant has a right to represent him- or herself under proper circumstances.  A violation of the right to an interpreter can also result in a denial of this constitutional right.[125]


                (4)  Right to be Present.  In one case, the court analogized the absence of an interpreter to the absence of the accused at his own trial, and noted that considerations of fairness, the integrity of the fact-finding process, and the potency of our adversary system of justice forbid that the state should prosecute a defendant who is not present at this own trial.  The court also underscored the constitutional importance of the ability of the accused to consult with his lawyer with a “reasonable degree of rational understanding.”  The court also noted that the defendant’s constitutional rights might require the presence of two interpreters, where trials are long, credibility is the central issue, and cross-examination of witnesses speaking a foreign language and interruption of the testimony is impractical.[126]  One court, in a deportation case, concluded that the lack of simultaneous interpretation is not a denial of the “reasonable opportunity to be present.”[127]


                (5)  Right to Present a Defense.  Without a competent and impartial interpreter to assist defendants in their understanding of criminal proceedings, defendants will be unable adequately to confront witnesses or present a defense.[128]

                (6)  Right to Testify.  Lack of an interpreter, or an inadequate interpreter, can also deprive the defendant of his right to testify in his own defense.[129]

[120] State v. Gonzales-Morales, 979 P.2d 826, 828 (Wash. 1999) (right to an interpreter is based upon the Sixth Amendment constitutional right to confront witnesses and “the right inherent in a fair trial to be present at one’s own trial” and purpose of the statute governing appointment of interpreters for criminal defendants is to uphold the constitutional rights of non-English speaking persons); Ko v. United States, 722 A.2d 830, 834 (D.C. Cir. 1998); State v. Starling, 315 N.E.2d 163 (Ill. App.1974) (interpreter made numerous errors in interpreting witness testimony; both defense and prosecutor complained; reversal based on denial of confrontation).

[121] See Pérez-Lastor v. INS, 208 F.3d 773 (9th Cir. 2000) (in a deportation case, a noncitizen’s due process rights were violated because the poor translation cast doubt on the accuracy of the testimony which was used to determine eligibility for relief, where party offered three types of evidence as tending to prove interpretation was inadequate: (1) direct evidence of incorrectly translated words, (2) unresponsive answers by the witness, and, (3) the witness’s expression of difficulty understanding what is said to him); cf. Augustin v. Sava, 735 F.2d 32, 37 (2d Cir. 1984) (court found violations of procedural rights “protected by statute and INS regulations and very likely by due process as well where the translation of the asylum application was nonsensical, the accuracy and scope of the hearing translation are subject to grave doubt, appellant misunderstood the nature and finality of the proceeding, and a credible claim which developed following translation was not reviewed.”).

[122] United States v. Cirrincione, 780 F.2d 620, 634 (11th Cir. 1986); see State v. Gonzales-Morales, 979 P.2d 826, 828 (Wash. 1999).

[123] United States v. Mendez, 102 F.3d 126 (5th Cir. 1997); United States v. Bailon-Santana, 429 F.3d 1258 (9th Cir. Dec. 6, 2005) (invalid jury waiver since defendant waived jury after attorney translated waiver form he was not qualified to translate).

[124] United States v. Fonseca, 705 N.E. 2d 1278, 1280-81  (Ohio App. 1997) (guilty plea vacated where Boykin/Tahl rights were not communicated to non-English speaking defendant).

[125] People v. Poplawski, 25 Cal.App.4th 881 (1994) (DUI conviction reversed where Polish defendant was tried in English and trial judge erroneously revoked pro per status due to defendant’s apparent incomprehension of English legal terms).

[126] United States ex rel. Navarro v. Johnson, 365 F. Supp. 676, 683 n.3 (E.D. Pa. 1973); see State v. Gonzales-Morales, 979 P.2d 826, 828 (Wash. 1999).

[127] El Rescate v. EOIR, 941 F.2d 950  (9th Cir. 1991).

[128] Ko v. United States, 722 A.2d 830, 834 (D.C. Cir. 1998)

[129] United States v. Mayans, 17 F.3d 1174  (9th Cir. 1994) (court’s insistence that Cuban defendant “try” testifying in English and court’s withdrawal of interpreter for defendant violated Fifth Amendment right to testify); Augustin v. Sava, 735 F.2d 32  (2d Cir. 1984) (nonsensical translation of Haitian asylum applicant’s testimony denied him “right to be heard”).