Criminal Defense of Immigrants


§ 4.38 (D)

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(D)  Right to a Hearing.  If a defendant raises a question concerning the need for, or competency or qualifications of, an interpreter, the court should conduct a hearing.[185]  “The appropriate way to determine whether to appoint an interpreter is to conduct an inquiry on the record, allowing the judge to determine whether the defendant or witness is able to understand the proceedings, communicate with counsel, and effectively participate in his [or her] own defense.”[186]

[185] Chacon v. Wood, 36 F.3d 1459, 1465 (9th Cir. 1994) (complaints concerning an interpreter by a party may require that the trial court conduct an evidentiary hearing); United States v. Anguloa, 598 F.2d 1182 (9th Cir. 1979) (during trial, counsel and the court should be informed of any difficulty with interpreters, and the court must then decide whether to retain or replace the interpreter); State v. Mendoza, 181 Ariz. 472, 891 P.3d 939 (App. Div. 1, 1995) (interpreter qualifications are subject to proper inquiry by parties but determination whether an interpreter is qualified is left to the sound discretion of the trial court); State v. Burris, 131 Ariz. 563, 643 P.2d 8 (App. Div. 2, 1982) (competency of appointed interpreter should be determined prior to the time when the interpreter enters on his duties; qualifications are subject to proper inquiry by the party against whom the evidence is going to be used).

[186] 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), citing United States v. Si, 333 F.3d 1041 (9th Cir. 2003); Tehrani v. State, 764 So.2d 895 (Fla. Dist. Ct. App. 2000) (holding that once court is aware that defendant has difficulty with the English language, court should determine whether defendant understands English sufficiently to aid in his defense, much as the court has a duty to determine whether defendant is mentally competent).