Criminal Defense of Immigrants

 

(B)  Grounds for Invalidating Conviction for Violation of Right to Interpreter.  The right to an interpreter is recognized in many jurisdictions by statute.[191]  Even if the source of the right to an interpreter is grounded in state law, it is possible to argue that federal due process is violated by the arbitrary denial of a state-created right, thus creating an issue for federal habeas corpus.[192]  It is necessary to raise this issue explicitly as a federal constitutional issue from the beginning of the state post-conviction litigation in order to preserve it as a federal issue.

 

                Because the interpreter is the channel through which all information reaches the non-English proficient defendant, virtually all of the many constitutional rights are effectuated by means of the interpreter.  An inadequate interpreter can therefore result in the violation of any or all constitutional rights required for a valid conviction.

 

                If the defendant does not speak fluent English, courts are often inadequate at ensuring that the defendant actually understands what is going on.  There is quite a difference, for example, between understanding spoken Spanish, and understanding complex legalese in written Spanish.  Literacy problems may compound language difficulties.  Every defendant in California has a constitutional right to an interpreter,[193] and the denial of this right would invalidate a conviction based upon a plea of guilty.  This issue will be evaluated under the abuse of discretion standard.[194]

 

                Forcing the defendant to share his defense interpreter with others or other functions can violate due process, the right to consult with counsel, or other constitutional rights, requiring reversal of the conviction.[195]  See § 4.30, supra.

                The right to an interpreter obviously implies the right to a competent interpreter.[196]  The question of an interpreter’s competence is a factual one for the trial court.[197]  The ideal time to question the qualifications of an interpreter is before s/he is permitted to act,[198] although if the competence of an interpreter becomes an issue after s/he commences performing the duties, it can be raised at that time.[199]  Some prejudice, i.e., some infringement of the ability to comprehend or communicate, must be shown, and a violation will be assessed under the Chapman test,[200] i.e., whether the prosecution can demonstrate beyond a reasonable doubt that no harm resulted from the violation.[201]

 

                Federal law on this question is less protective than California law.[202]  Nonetheless, there is more favorable authority than one might suspect.  One purpose of the interpreter is to enable the defendant to understand the proceedings and communicate with counsel.[203]  A defendant is denied due process if s/he cannot understand the proceeding, the accuracy and scope of a translation is subject to grave doubt, the nature of the proceeding is not explained to his or her full understanding, or 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.[204]

 

                The following illustrative issues are among those which may be raised in an effort to vacate a conviction.

 

                The judge should appoint an interpreter for a defendant on request, even if the defendant has a limited ability to communicate in English.[205]

 

                An indigent defendant has a constitutional right to a court-appointed interpreter to assist the defendant in understanding what is said in court and in communication between the defendant and counsel.[206]

 

                Even when an interpreter is not requested, or when a defendant does not initially state his or her inability to communicate effectively in English, it is the responsibility of the judge to determine whether and when an interpreter needs to be appointed.[207]

                The defendant has a right to testify in his or her native language on request, even though s/he may speak some English.[208]

 

                An interpreter is forbidden to “embellish” testimony, but this will not always be found to be a reversible error.[209]

 

                The court erred in ordering an interpreter to delete portions of pro se defendant’s statements, but the error was held harmless.[210]

 

                The voir dire of the party or witness to determine whether to appoint an interpreter should take place in the absence of the jury, so as to avoid the risk of prejudice.[211]

 

                Direct communication between a judge and a witness or a party to the case in that person’s native language is equivalent to an ex parte communication.[212]

 

                A conviction may be reversed for ineffective assistance of counsel, if the attorney is required to interpret for his or her client during the proceedings, since that attorney’s ability to provide effective legal representation may thereby be severely hampered.[213]

 

                A conviction is invalid if it rests on a guilty plea entered at a proceeding at which the right to an interpreter was violated.[214] 

 

                An interpreter must be appointed to all limited-English proficient persons entering into a plea agreement, in order to guarantee, on the record, that the defendant is knowingly and voluntarily entering into the plea agreement.[215]  Some courts, however, are less protective of the constitutional rights of the defendant.[216]

                A sentencing hearing must also be invalidated if the right to an interpreter was violated.[217]

 

                Just as each defendant has a right to separate counsel, if there are two defendants each requiring an interpreter, a second interpreter is required so that each defendant is able to communicate privately and simultaneously with respective counsel, since codefendants may have competing interests.[218]

                Separate interpreters are also required for a defendant and a witness, each of whom has limited English proficiency.  A second interpreter should be provided to interpret for the witness, while the primary interpreter sits at the defense table to interpret between the defendant and his or her counsel.  When the defendant’s counsel speaks the same language as the defendant, and a second interpreter is not reasonably available to interpret for the witness, it may be permissible to “borrow” the court interpreter to interpret for the witness, but not if the “borrowing” deprives the defendant of a simultaneous verbatim translation of what is said in court.[219]

 

                A conviction must be invalidated if the defendant’s waiver of the right to an interpreter is not knowing and intelligent, because the right to an interpreter is the means by which many fundamental constitutional rights are implemented.[220]

                The defendant’s right to counsel was not violated when the court borrowed defendant’s court-appointed interpreter to translate the testimony of a Spanish-speaking witness for the state.[221]

 

                A defendant’s claim that his guilty plea was involuntary because of his inability to speak English was rejected, since the petition to enter the plea was written in both English and Spanish, the defendant was represented by bilingual counsel who explained the petition in Spanish, and he was assisted by an interpreter at plea and sentencing.[222]  Minor errors will not be deemed sufficiently serious to require reversal of a conviction.[223]

[191] E.g., 18 U.S.C. § 1827(d)(1); California Rules of Court, § 18 (1990, adopted 1979); D.C. Code, Sec. 31-2702 (1988 Supp.); Idaho Code. § 9-205 (1997); Oregon Revised Statutes § 45.275 (1996); Rev. Code Wash., § 9-205 (1997); Oregon Revised Statutes § 45.275.

[192] Hicks v. Oklahoma, 447 U.S. 343, 346 (1980); see also Hernandez v. Ylst, 930 F.2d 714, 716 (9th Cir. 1990); Gutierrez-Chavez v. INS, 298 F.3d 824 (9th Cir. July 31, 2002), opinion amended on denial of rehearing, 337 F.3d 1023 (9th Cir. July 22, 2003) (to show inadequate translation resulted in due process violation, petitioner must demonstrate that better translation likely would have made difference in outcome).

[193] Cal. Const., Art. I, section 14.

[194] In re Raymundo B., 203 Cal.App.3d 1447, 1455 (1988).

[195] People v. Resendes, 210 Cal. Rptr. 609 (Cal. Ct. App. 1985) (in joint criminal trial of two defendants who did not speak English, requiring the defendants to share one defense interpreter inhibited effective communication with counsel and constituted reversible error); People v. Menchaca, 146 Cal.App.3d 1019, 1025 (1983) (at various stages throughout the trial, the defendant either did not have an interpreter or relied upon a witness interpreter or an unsworn interpreter to assist him communicate with counsel, so court of appeals reversed conviction upon a finding that his due process rights under the California Constitution had been violated by the lack of interpreter: “Nothing short of a sworn interpreter at defendant’s elbow” will satisfy guarantee to an interpreter throughout the proceedings).

[196] People v. Estrada, 176 Cal.App.3d 410, 221 Cal.Rptr. 922 (1986).  In People v. Mora, 153 Cal.App.3d 18, 199 Cal.Rptr. 904 (1984), the court held that the failure to administer an oath to the defendant’s interpreter did not render the services of the interpreter constitutionally ineffective.

[197] People v. Mendes, 35 Cal.2d 537, 543, 219 P.2d 1 (1950); People v. Roberts 162 Cal.App.3d 350, 355, 208 Cal.Rptr. 461 (1984).

[198] People v. Phillips, 12 Cal.App. 760, 763, 108 P. 731 (1910).

[199] People v. Estrada, supra, 176 Cal.App.3d 410, 415‑416, 221 Cal.Rptr. 992.

[200] See Chapman v. California, 386 U.S. 18, 22  (1967).

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

[202] See Gonzalez v. United States, 33 F.3d 1047 (9th Cir. 1994) (defendant with some language difficulties not entitled to interpreter).  On the other hand, the Ninth Circuit held that a claim that the interpreter intentionally misinterpreted defense counsel’s advice, which led to an involuntary plea, adequately alleged a violation of the right to effective assistance of counsel and due process.  Chacon v. Wood, 36 F.3d 1459, 1464  (9th Cir. 1994) (interpreter to provide accurate and complete translations to Spanish-speaking defendant was necessary for defendant to receive effective assistance of counsel, citing other courts that have recognized that an interpreter is essential to a defendant’s confrontation rights).

[203] United States v. Febus, 218 F.3d 784, 791 (7th Cir. 2000).

[204] United States v. Cirrinaone, 780 F.2d 620, 634 (7th Cir. 1980).

[205] United States v. Mayans, 17 F.3d 1174 (9th Cir. 1994) (holding that the court’s denial of defendant’s request for an interpreter violated the defendant’s right to testify on his own behalf, under the guise of efficiency); United States v. Tejada, 886 F.2d 483 (1st Cir. 1989) (the trial court properly allowed witness to testify in Spanish, through an interpreter, after defense counsel had been given an opportunity to question the witness extensively about his ability to speak English, finding that it would have been more problematic had the court required the witness to testify in English, against his wishes, and the wishes of the government and jury); Hernandez v. State, 862 S.W.2d 193 (Tex. Ct. App. 1993) (overturning conviction because court denied defendant’s request for an interpreter without first establishing on the record that the defendant had sufficient “understanding of English as it relates to criminal proceedings,” even though defendant had limited ability to speak and understand English).

[206] Giraido-Rincon v. Dugizer, 707 F. Supp. 504 (M.D. Fla. 1989) (holding that trial court’s refusal to appoint an interpreter to a defendant represented by private counsel, where counsel represented that client could not afford an interpreter, violated defendant’s Sixth Amendment right to confrontation and due process); Villarreal v. State, 853 S.W.2d 170 (Tex. Ct. App. 1993) (overturning conviction on finding that trial court’s denial of defense counsel’s request for an interpreter for an indigent defendant violated defendant’s federal constitutional rights).

[207] D.C. Code, Sec. 31-2703-04 (1988 Supp.); Florida Code, Sec. 90-606.1 (a); Valladares v. United States, 871 F.2d 1564, 1565 (11th Cir. 1989) (holding that 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) (holding that 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).

[208] Commonwealth v. Pana, 469 Pa. 43, 364 A.2d 895 (1976).

[209] United States v. Gomez, 908 F.2d 809  (11th Cir. 1990) (reviewing court recognizes that interpreter should not “embellish” testimony, but error harmless since prosecution evidence was “overwhelming”).

[210] United States v. Torres, 793 F.2d 436  (1st Cir. 1986).

[211] United States v. Mayans, 17 F.3d 1174 (9th Cir. 1994) (the trial court erred in conducting a determination of the defendant’s need for an interpreter by testing his English while he was testifying on the stand); Commonwealth v. Pana, 364 A.2d 895, 899 (Pa. 1976) (the judge should have made the determination not to appoint an interpreter out of the presence of the jury, “because the negative inference that may be drawn from the court’s refusal”).

[212] Hon. Charles M. Grabau and Llewellyn Joseph Gibbons, Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation, 30 New Eng. L. Rev. 227, 298, n.353 (Winter 1996) ( “An attorney who is physically present but does not speak the foreign language is linguistically absent for the purposes of an ‘ex parte’ communication in this situation.  Such an attorney is unable to protect the interests of his or her client and may become suspicious of the non-English communication.”).

[213] State v. Kounelis, 609 A.2d 1310, 1314 (N.J. Super.) (“For defense counsel to cross-examine witnesses, listen to testimony and objections of the prosecuting attorney, hear rulings and remarks of the presiding judge and simultaneously render an accurate and complete translation to his (client) is an impossible task.”, citing State v. Rios, 539 P.2d 900, 901 (Ariz. 1975), cert. denied, 627 A.2d 1 139 (N.J. 1992); United States v. Martinez, 616 F.2d 185, 187-88 (5th Cir. 1980), cert. denied, 450 U.S. 994 (1981); People v. Chavez, 177 Cal.  Rptr. 306, 313 (Ct. App. 1981); Commonwealth v. Garcia, 399 N.E.2d 460, 469 n.6 (Mass.1980); Baltierra v. State, 586 S.W.2d 553, 559 n.11 (Tex. 1979) (en banc) ( “The trial court commendably appointed counsel fluent in the Spanish language and thereby afforded appellant a basic aspect of effective assistance of counsel, ability to communicate.  But, effectuating that important constitutional requirement should not be taken as implementing the constitutional right to confrontation. . . .  The lawyer discharges his obligation by providing effective assistance guaranteed by the Sixth Amendment to the Constitution of the United States and Article 1, Section 10 of the Constitution of Texas.  Counsel is not obliged to implement the right of confrontation.  That duty is imposed upon the court by the confrontation clause in the Sixth Amendment and Article 1, Section 10.”).

[214] See 28 U.S.C. § 1827(b)(1); 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); Lopez v. United States, 615 A.2d 1140 (D.C. Cir. 1992) (remanding case where defendant not provided with interpreter, and record did not support a knowing and voluntary waiver of her right to a jury trial); Commonwealth v. Brito, 402 Mass. 761, 767 (1988); People v. Menchaca, 146 Cal. App.3d 1019, 1024-25 (1983).  But see People v. Estany, 210 Cal. App. 2d 609 (1962) (error not found because the defendant had some “substantial understanding” of English, was represented by counsel, did not request an interpreter or object to proceedings, and did not oppose submission of transcript from hearing after having had opportunity to review it).

[215] Minn. R. Crim. Proc. 15.11 (1996) (“In all cases in which a defendant is handicapped in communication because of difficulty in speaking or comprehending the English language, the court may not accept a guilty plea petition unless the defendant is first able to review it with the assistance of a qualified interpreter and the court establishes on the record that this has happened.”); Wash. Cr. R. 4.2(h); United States v. Leung, 783 F. Supp. 357, 360 (N.D. 111. 1991) (allowing withdrawal of guilty plea on Rule 11 and due process grounds, noting: “Allowing linguistic and cultural barriers as a fair and just reason for withdrawal [of a guilty plea] . . . will require district courts to take adequate care that these barriers are overcome during a defendant’s plea hearing.”); Mesidor v. State, 521 So.2d 333 (Fla. App. 4 Dis. 1988) (trial judge’s failure to swear in an interpreter and to determine the interpreter’s qualifications and bias during plea proceedings resulted in post-conviction relief); Parra v. Page, 430 P.2d 834 (Okla. Crim. App. 1967) (vacating judgment and sentence where attorney entered guilty plea for Mexican-American migrant worker who could not read, write or speak English without ever having an interpreter provided); The Use of Court Interpreters In New Mexico: A Handbook for Judges, Attorneys and Interpreters, ¶ 1.3 - 1, § A. 1; People v. Serna, 262 A.D.2d 673 (N.Y. App. Div. 1999) (failure to appoint interpreter at plea held reversible error, where defendant claimed he did not enter his guilty plea knowingly and intelligently because he was unable to communicate with his attorney due to language difficulties); Aleman v. State, 957 S.W.2d 592, 594 (Tex. App. 1997) (reversing conviction based on plea, where trial court provided an interpreter solely to assist Spanish-speaking defendants fill out plea papers, because “the role of an interpreter is not merely to translate and explain the proceeding to a non-English speaking defendant, but to also provide that defendant a voice which can be heard and understood during a criminal proceeding. The denial of the opportunity to be heard rendered Appellant’s plea of guilty involuntary and in violation of his constitutional and statutory protections.”).

[216] González v. United States, 33 F.3d 1047  (9th Cir. 1994) (denial of motion to vacate guilty plea affirmed despite evidence defendant had comprehension difficulties and needed interpreter; dissent cites fact that defendant could only answer yes/no questions as evidence of need for interpreter); United States v. Perez, 918 F.2d 488 (5th Cir. 1990), cert. denied, 500 U.S. 933 (1991) (upholding guilty plea where defendant had assured magistrate that he did not need an interpreter, and where there was no judicial finding of defendant’s inability to understand proceedings); State v. Teshome, 122 Wash.App. 705 (2004) (guilty plea valid even though interpretation faulty, as defendant did not rely completely on interpreter).

[217] State v. Hansen, 146 Ariz. 226, 232 (Ariz. Ct. App. 1985) (vacating plea agreement where interpreter was not provided at sentencing hearing); Monte v. State, 443 So.2d 339 (Fla. Dist.Ct. App. 1983) (finding that, absent valid waiver or presence of other circumstances which would have enabled non-English-speaking defendant to comprehend sentencing proceeding, it was reversible error for trial court, which had appointed an interpreter for defendant’s plea hearing, to fail to appoint an interpreter at sentencing proceeding even though defense counsel failed to raise the issue at that hearing).

[218] People v. Rodriguez, 205 Cal.  Rptr. 556, 559-61 (1984) (remanding case where defendants had shared one interpreter while the other interpreter was used to interpret for the witness, finding: (1) “The problem is that the proximity of each defendant and his counsel to the joint interpreter created an unacceptable restriction on private communication with counsel.”; (2) “Article 1, section 14 of the state Constitution gives each defendant an unconditional right to an interpreter throughout the proceedings.  That right was impaired when the same interpreter was utilized for both defendants.”; (3) “Considerations of fairness, the integrity of the fact-finding process, and the potency of our adversary system of justice (United States ex rel. Negron v. New York, 434 F.2d at p. 389), mandate a new trial for both appellants.”).

[219] People v. Mata Aguilar, 200 Cal.Rptr. 908, 677 P.2d 1198 (Cal. 1984) (recognizing that a court interpreter has multiple roles as a “witness interpreter,” a “proceedings interpreter,” and a “defense interpreter,” and therefore, more than one interpreter may be required where those three roles are required at the same time); People v. Romero, 153 Cal.App.3d 757, 200 Cal.Rptr. 404 (1984) (holding that Spanish-speaking defendant was denied constitutional due process when interpreter was “borrowed” to interpret the testimony of Spanish-speaking witnesses); California Rules of Court - Appendix, § 18(a).  Two federal courts have held that the same interpreter may be used both to translate testimony and interpret between defendant and defense counsel.  United States v. Johnson, 248 F.3d 655 (7th Cir. 2001); United States v. Bennett, 848 F.2d 1134 (11th Cir. 1988).  This conclusion, however, would be improper if the defendant could show prejudice from the loss of the undivided attention of the interpreter to one of the constitutionally required tasks.

[220] 18 U.S.C. § 1827(f)(1); D.C. Code, Sec. 31-2706 (1988 Supp.); Utah Code Jud. Admin.  R. 3-306(7) (1997); Washington Code, § 2.43.060; United States ex rel. Negron v. New York, 434 F.2d 386, 390-91 (2d Cir. 1970) (finding that defendant’s failure to request an interpreter did not constitute a waiver of his right to an interpreter, and that it is the duty of the court, having been “put on notice of a defendant’s severe language difficulty, [to] make unmistakably clear to him that he has a right to have a competent translator assist him, at state expense if need be, throughout his trial.”  The court was not “inclined to require that an indigent, poorly educated Puerto Rican thrown into a criminal trial as his initiation to our trial system, come to that trial with a comprehension that the nature of our adversarial processes is such that he is in peril of forfeiting even the rudiments of a fair proceeding unless he insists upon them.”); People v. Mata Aguilar, 200 Cal.Rptr. 908, 677 P.2d 1198 (1984) (holding that the defendant had not effectively waived his right to an interpreter, because there was no evidence that the waiver was knowingly and voluntarily given, and that the acquiescence of the defense counsel is not enough to permit a waiver); State v. Neave, 117 Wis.2d 359 (1984) (holding that the right to an interpreter is a personal right which cannot be waived by the defendant’s attorney, and which is not necessarily waived by failure to assert); Baltierra v. State, 586 S.W.2d 553, 559 (Tex. 1979).

[221] State v. Gonzalez-Morales, 138 Wn.2d 374 (Wash. 1999).

[222] United States v. Martinez-Cruz, 186 F.3d 1102 (8th Cir. 1999).

[223] See Mohamed v. Gonzales, 470 F.3d 771 (8th Cir. Nov. 27, 2006) (respondent’s due process rights were not violated by two non-prejudicial one-word translation failures).