Criminal Defense of Immigrants

(D)  The Proper Role of Discretion.  Despite increasing recognition of the statutory and constitutional right to an interpreter, trial and appellate courts have continued to hold that the question of whether a defendant requires the services of an interpreter rests in the trial court’s discretion.[143]  They conclude courts must have discretion due to the many factors involved in the decision, including the complexi­ty of the testimony, the facility with which the defendant speaks English, and the degree of understanding shown by the defendant.[144]  Because the right to an interpreter is mandatory under various constitutional and statutory provisions, however, the proper view is that trial court has discretion only as to “the factual question of whether an interpreter is needed; a trial court does not have discretion to decide whether a defendant who needs an interpreter has a legal entitlement to one.”[145]

[143] See United States v. Mayans, 17 F.3d 1174, 1179 (9th Cir. 1994); United States v. Yee Soon Shin, 953 F.2d 559, 561 (9th Cir. 1992); United States v. Sanchez, 928 F.2d 1450, 1456 (6th Cir. 1991); Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989); United States v. Bennett, 848 F.2d 1134, 1141 (11th Cir. 1988); Luna v. Black, 772 F.2d 448, 451 (8th Cir. 1985) (per curiam); United States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973) (per curiam); Natividad, 526 P.2d at 733; Gonzales v. State, 356 S.E.2d 545, 546 (Ga. Ct. App. 1987); State v. Hernandez, 820 P.2d 380, 383 (Idaho Ct. App. 1991); Escalante, 627 N.E.2d at 1227; In re R.R., 398 A.2d 76, 85 (N.J. 1979); State v. Torres, 368 S.E.2d 609, 611 (N.C. 1988); Pana, 364 A.2d at 898; State v. Drobel, 815 P.2d 724, 737 (Utah Ct. App. 1991).

[144] See Carrion, 488 F.2d at 14-15; Pana, 364 A.2d at 898.

[145] See State v. Neave, 344 N.W.2d 181, 183 (Wis. 1984); see also Gonzalez v. United States, 697 A.2d 819, 825 n.17 (D.C. App. 1997); State v. Gonzalez­-Gongora, 673 S.W.2d 811, 818 (Mo. Ct. App. 1984); Commonwealth v. Wallace, 641 A.2d 321, 324 (Pa. Super. Ct. 1994). Similarly, other courts have stated that a court abuses its discretion when it refuses to appoint an interpreter in violation of a defendant’s rights. See Giraldo-Rincon v. Dugger, 707 F. Supp. 504, 507 (M.D. Fla. 1989); Escalante, 627 N.E.2d at 1227; People v. Koch, 618 N.E.2d 647, 655 (Ill. App. Ct. 1993); Pana, 364 A.2d at 898.