Criminal Defense of Immigrants

 

The court has an overarching responsibility to make sure the constitutional rights of the defendant are protected in proceedings over which it presides.[163]  The ABA Judge’s Guide to Immigration Law in Criminal Proceedings states: “The need to appoint an interpreter arises at the first moment it comes to the court’s attention that the defendant is unable to fully understand or communicate in English.”[164]  “[I]t is essential to provide an interpreter when a defendant or witness has an inadequate grasp of English which prevents comprehension of the courtroom process.”[165]

                “It is recommended that judges presume a bona fide need for an interpreter when a representation is made by an attorney or a pro se litigant that a party or witness has limited proficiency in English and requests an interpreter.  When any doubt exists about the ability of persons to comprehend proceedings fully or adequately express themselves in English, interpreters should be appointed.” [166]

 

                The court should take great care to ensure a defendant who needs an interpreter receives the necessary assistance both in court and outside of court.  When a defendant or defense counsel requests the assistance of an interpreter, the court should presume they know their needs and provide the assistance requested.

 

                Even when an interpreter is not requested, or when a defendant does not expressly inform the court of his or her inability to communicate effectively in English, the court has the responsibility determine whether an interpreter needs to be appointed.[167]  Waiver of the right to an interpreter cannot be assumed from the failure of the defendant or defense counsel to make a request for an interpreter.  In one case, the court stated: “A defendant who passively observes in a state of complete incomprehension the complex wheels of justice grind on before him can hardly be said to have satisfied the classic definition of a waiver ... .  This would be especially true with a Mexican national during his initial contact with our judicial system.” The inability of a defendant to understand the proceedings “would be not only fundamentally unfair but particularly inappropriate in a state where a significant minority of the population is burdened with the handicap of being unable to effectively communicate in our national language. A defendant’s inability to spontaneously understand testimony being given would undoubtedly limit his attorney’s effectiveness, especially on cross-examination.”  This issue also calls into question the accused’s right to be present at every stage of his own trial.  The case was remanded with instructions for a hearing to establish the nature and severity of any language difficulty.[168] 

 

Courts have held the right to an interpreter includes a right to simultaneous interpretation throughout the proceedings.[169]  The court must inform the defendant of the right to an interpreter at public expense and determine whether an interpreter is necessary whenever the court is put on notice of a language difficulty or on motion of a party.[170]  If the defendant speaks another language in addition to English, however, that fact alone does not entitle a defendant to an interpreter.[171]  The defendant’s failure to request an interpreter does not necessarily waive the constitutional right to an interpreter.[172]

 

The fact that the client speaks some English, alone, should not prevent the court from appointing an interpreter, because of the difficulties of the language and syntax used in the courtroom environment.[173]

 

                The right to an interpreter, at court expense, should not depend upon the indigence of the defendant.  In a Texas case, the court found reversible error in failing to appoint interpreter for defendant, who did not speak English, even though the defendant was not indigent, since Texas Code of Criminal Procedure, Article 38.30(a), which requires the appointment of an interpreter, does not distinguish between indigent and non-indigent defendants. The court noted that “[t]he right to confront witnesses includes the right to have trial proceedings translated to a language the accused can understand.”[174]

 

[163] Deitz v. Money, 391 F.3d 804 (6th Cir. Dec. 13, 2004, as amended Dec. 20, 2004) (reversing district court’s dismissal of habeas corpus petition based, inter alia, on constitutional claim appellate counsel was ineffective for not raising potential winning issues on appeal, specifically the authorities’ failure to provide an interpreter for Deitz during the taking of his plea, and directing district court to decide the ineffective assistance claims on their merits, since ineffective assistance of counsel constitutes cause to excuse a procedural default: “Given that Dietz’s claim of ineffective assistance of counsel is not procedurally defaulted, that he has alleged facts that can establish cause for his failure to file a direct appeal, and that prejudice would be presumed, he is entitled to habeas relief if he can in fact prove that he asked his attorney to file a timely appeal and that the attorney failed to do so.”).

[164] Court Interpreters in Criminal Proceedings: Appointment, Qualification and Effective Utilization, Chap. 6 in American Bar Ass’n Comm’n on Immigration, Judicial Immigration Education Project, A Judge’s Guide to Immigration Law in Criminal Proceedings 6-2 (P. Goldberg & C. Wolchok, eds., 2004).

[165] Commentary to Standard 6-1.1, ABA Standards for Criminal Justice: Special Functions of the Trial Judge (3d ed. 2000).

[166] Court Interpreters in Criminal Proceedings: Appointment, Qualification and Effective Utilization, Chap. 6 in American Bar Ass’n Comm’n on Immigration, Judicial Immigration Education Project, A Judge’s Guide to Immigration Law in Criminal Proceedings 6-7 (P. Goldberg & C. Wolchok, eds., 2004).

[167] E.g., California State Constitution, Article 1, § 4; Chang & Araujo, Interpreters for the Defense: Due Process for the Non‑English‑Speaking Defendant,  63 CAL.L.REV. 801, 802 (1975); Valladares v. United States, 871 F.2d 1564, 1565 (11th Cir. 1989) (the trial court has a duty to inquire “as to the need for an interpreter when a defendant has difficulty with English.”); United States v. Carrion, 488 F.2d 12 (1st Cir. 1973) (it is the responsibility of the trial court to investigate a defendant’s proficiency in English and to determine the need for an interpreter); Commonwealth v. Pana, 469 Pa. 43, 64 A.2d 895 (1976) (overturning a conviction because the trial judge had refused to allow the defendant to testify in Spanish because the defendant spoke some English, where the record revealed that the defendant either asked that a question be repeated, or answered a question with a question, twenty-seven times while on the witness stand, which should have given clear indication to the judge of his inability to communicate effectively in English); Parra v. Page, 430 P.2d 834, 837 (Okla. Crim. App. 1967) (holding that trial court’s denial of an interpreter to a non English-speaking defendant violated defendant’s federal constitutional right to a fair and impartial trial); State v. Masato Karumail, 101 Utah 592, 126 P.2d 1047 (1942) (cited in Battierra v. State, 586 S.W.2d 553, 558 (Tex. 1979) (stating: “[I]t is the duty of the Court to take whatever steps are necessary to prevent injustice and, if necessary, the Court should, on its own motion, appoint an interpreter for the defendant at the State’s expense.); The Use of Court Interpreters in New Mexico: A Handbook for Judges, Attorneys and Interpreters, 1.5-1, 1.5-2. 1.5-3; California Rules of Court, Appendix, § 18(a) - (b). For a comprehensive collection of decisions relating to the use of court interpreters, see 36 A.L.R.3d 276 (1971), 32 A.L.R.5th 149; Annot., Use of Interpreter in Court Proceedings, 172 A.L.R. 923 (1948).

[168] State v. Natividad, 526 P.2d 730, 733 (Ariz. 1975).

[169] See Giraldo-Rincon, 707 F. Supp. at 506; People v. Mata Aguilar, 677 P.2d 1198, 1201, 1202 n.7 (Cal. 1984) (en banc); People v. Avila, 797 P.2d 804, 806 (Colo. Ct. App. 1990); State v. Munoz, 659 A.2d 683, 696 (Conn. 1995); State v. Roman, 616 A.2d 266, 270 (Conn. 1992); Martinez Chavez v. State, 534 N.E.2d 731, 736 (Ind. 1989); Molina v. State, 621 N.E.2d 1137, 1139-40 (Ind. Ct. App. 1993); People v. Cunningham, 546 N.W.2d 715, 664-65 (Mich. Ct. App. 1996); Mendiola v. State, 924 S.W.2d 157, 163 (Tex. App. 1995).

[170] See United States v. Carrion, 488 F.2d 12, 15 (1st Cir. 1973); United States ex rel. Negron v. State of New York, 434 F.2d 386, 391 (2d Cir. 1970); Giraldo­Rincon, 707 F. Supp. at 507; Natividad, 526 P.2d at 733-34; Chao v. State, 604 A.2d 1351, 1362 (Del. 1992); State v. Kounelis, 609 A.2d 1310, 1313 (N.J. Super. App. Div. 1992); State v. Rodriguez, 682 A.2d 764, 768 (N.J. Super. Law Div. 1996); Woo Won Choi, 781 P.2d at 508-09; People v. Navarro, 521 N.Y.S.2d 82, 83 (N.Y. App. Div. 1987); Pana, 362 A.2d at 898; Commonwealth v. Wallace, 641 A.2d 321, 324 (Pa. Super. Ct. 1994); Baltierra v. State, 586 S.W.2d 553, 559 (Tex. Crim. App. 1979); Adballah v. State, 924 S.W.2d 751, 754 (Tex. App. 1996); State v. Neave, 344 N.W.2d 181, 188-89 (Wis. 1984); see also Luna v. Black, 772 F.2d 448, 451 (8th Cit. 1985) (per curiam) (holding that trial court did not err in failing to appoint interpreter where defendant made no request and need for interpreter was not apparent); State v. Barber, 617 So. 2d 974, 975 (La. Ct. App. 1993) (holding that hearing-impaired defendant was entitled to interpreter because court was aware of hearing difficulty); Vasquez v. State, 819 S.W.2d 932, 937 (Tex. App. 1991) (holding that trial court did not err in failing to appoint interpreter where defendant did not object and court was not aware of difficulty).

[171] See Abdallah, 924 S.W.2d at 753.

[172] See State v. Natividad, 526 P.2d 730, 733 (Ariz. 1974) (en banc); Kounelis, 609 A.2d at 1314; Wallace, 641 A.2d at 324; see also Mata Aguilar, 677 P.2d at 1204 (requiring knowing, voluntary, and intelligent waiver of right to interpreter by defendant on the record); People v. Carreon, 198 Cal. Rptr. 843, 853 (Cal. Ct. App. 1984) (same); People v. Minh Luu, 813 P.2d 826, 828 (Colo. Ct. App. 1991) (holding that attorney cannot waive right to interpreter on behalf of client); Rodriguez, 682 A.2d at 771 (requiring knowing, voluntary, and intelligent waiver of right to interpreter by defendant on the record); Neave, 344 N.W.2d at 187-88 (holding that right to interpreter is a personal right which cannot be waived by an attorney). But see United States v. Joshi, 896 F.2d 1303, 1310 (11th Cir. 1990) (noting absence of objection as one factor in finding no violation of defendant’s constitutional right to an interpreter); United States v. Jong Moon Lim, 794 F.2d 469, 471 (9th Cir. 1986) (per curiam) (same); Gonzalez v. State, 356 S.E.2d 545, 546 (Ga. Ct. App. 1987) (holding claim for interpreter barred by failure to object in trial court); People v. Calizaire, 593 N.Y.S.2d 879, 857-58 (N.Y. App. Div. 1993) (mem.) (holding that defendant waived right to interpreter by not requesting an interpreter).

[173] See United States v. Frank, 494 F.2d 145, 157 (2d Cir. 1974); State v. Hansen, 705 P.2d 466, 472 (Ariz. Ct. App. 1985); Commonwealth v. Pana, 364 A.2d 895, 899 (Pa. 1976); Hernandez v. State, 862 S.W.2d 193, 196 (Tex. App. 1993).

[174] Villarreal v. State, 853 S.W.2d 170 (Tex. Ct. App. 1993), citing Baltierra v. State, 586 S.W.2d 553, 558 (Tex. Crim. App. 1979).