Criminal Defense of Immigrants


§ 4.39 (A)

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(A)  In General.  Many convictions are potentially invalid on grounds of violation of the right to an interpreter for limited-English-proficient defendants in criminal proceedings, both directly because of violation of this right, and indirectly because of the violation of the many other fundamental constitutional rights that depend upon the defendant understanding what is happening in court.  These requirements apply for all criminal proceedings in which a party’s or witness’ limited capabilities in English inhibit understanding and participation in the proceedings.[187]


                The same rights apply by analogy in cases in which a defendant or witness is hearing-impaired, because of the equal importance to the defendant of understanding what is going on both in court and in case-related conversations with counsel.


                Because all constitutional rights flow through the interpreter, a constitutionally defective interpreter should constitute “structural error” sufficient to require reversal of a conviction without any need to show prejudice.[188]  Even the guilty have a constitutional right to an interpreter, and to understand what is going on.  Therefore, reversal should be required whenever a significant failure to understand what is going on is caused by inadequate interpretation.


                These claims can also be raised as violations of the due process clauses of the United States Constitution.[189]  These claims can also be raised under the specific state constitutional right to an interpreter.[190]


                It is worthwhile to take a very careful look at the plea transcript to determine whether it contains evidence that the defendant did not understand what was going on.  Interruptions to consult with counsel, statements that the defendant did not understand something, inappropriate responses to questions, and grammatical errors in statements made by the defendant may all provide evidence that the defendant in fact did not understand something, thus offering ammunition for an argument that the plea was not knowing and intelligent.  It may be worthwhile to consult a linguist to give an expert opinion on this question.  For the most part, plea colloquies contain only leading questions requiring “yes” answers which in fact provide no indication whether the defendant actually understands the questions, or is giving the expected “yes” answers merely to be agreeable or because of fear of authority, or for other reasons that do not indicate the plea was knowing and intelligent.


[187] For comprehensive and exhaustive annotations governing 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).

[188] Cf. United States v. Cronic, 466 U.S. 648 (1984).

[189] E.g., Amadou v. INS, 226 F.3d 724 (6th Cir. 2000) (due process violation resulted from interpreter’s inaccurate translation, resulting in adverse credibility finding in immigration court); United States v. Higareda-Ramírez, 107 F.Supp.2d 1248 (D. Hawaii 2000) (due process violation to fail to provide interpreter during immigration hearing).

[190] E.g., People v. Rodriguez, 42 Cal.3d 1005, 232 Cal.Rptr. 132, 135 (1986).