Criminal Defense of Immigrants

(C)  Waiver of the Right to an Interpreter.  A waiver of the right to an interpreter “shall be effective only if approved by the [judge] and made expressly by such individual on the record after opportunity to consult with counsel and after the [judge] has explained. . .the nature and effect of the waiver. [28 U.S.C.A. § 1827(f)(1)].”[224]  Additionally, “[t]here can be no waiver of right to interpreter without knowing, voluntary and intelligent declaration on the record by the defendant, and the trial court must provide an interpreter at public expense if defendant requires one and cannot afford to pay for these services.”[225]  In a Wisconsin case, an interpreter was appointed for the defendant’s preliminary hearing and arraignment, but not for trial or sentencing. The court held on appeal that the right to an interpreter was a fundamental right that had to be waived personally by the defendant, similar to the rights to decide how to plead, to request a trial by jury, or to forego the assistance of counsel. Waiver of the right to an interpreter must thus be made voluntarily in open court on the record and not by the defendant’s attorney. Because it was clear that the defendant did not have sufficient language competence to understand the trial testimony, the conviction was vacated.[226]  Waiver of the right to an interpreter can also, under some circumstances, constitute ineffective assistance of counsel.[227]

                “The waiver of the right to an interpreter is revocable.  If at any time during the proceedings a defendant who had previously waived the right to an interpreter indicates that he wishes to retract the waiver, the judge is thus put on notice of a defendant’s English-comprehension limitations, and must conduct an inquiry to determine whether an interpreter should be appointed [for the rest of the proceedings].” [228]

PRACTICE POINTER:  Waiver forms in foreign languages should be carefully examined to determine whether all required advisements and waivers have been translated accurately.  For example, many waiver forms do not contain a translation of the definition or name of the actual offense to which the client is pleading guilty, since that information varies from case to case and cannot be preprinted on the form.  The client cannot be expected to know what “P.C. § 245(a)(1),” for example, signifies, without a translation from the code section number to the verbal description of the offense (e.g., assault with a deadly weapon).  Serious translation errors have been found on some forms, such as forms that state “I do not [sic] understand that I am giving up X rights.”

The court committed reversible error in permitting the prosecution to call the defendant’s interpreter to testify against him during trial, since this might have led jurors to conclude that part of the defense team thought the defendant was guilty, leading to an inference of criminality lightening the DA’s burden to prove intent.[229]

[224] State v Rodriguez, 682 A.2d 764, 770 (N.J. Super. Ct. Law Div. 1996) (vacating conviction).

[225] Id. at 771.

[226] State v. Neave, 117 Wis.2d 359, 344 N.W.2d 181 (1984), overruled in part on other grounds by State v. Koch, 175 Wis.2d 684, 499 N.W.2d 152 (1993).

[227] González v. Phillips, 195 F.Supp. 2d 893 (E.D. Mich. 2001) (trial attorney’s waiver of right to interpreter for non-English speaking defendant violated Sixth Amendment standard of care and constituted ineffective assistance of counsel); cf. Kan v. State, 4 S.W. 3d 38  (Tex. App. 1999) (trial court claimed interpreter’s inability to keep pace was fault of attorneys’ too-rapid speech, so attorneys waived any interpreter errors for appeal).

[228] 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 6-11 (P. Goldberg & C. Wolchok, eds., 2004), citing Utah Code Jud. Admin. R. 3-306(7)(B) (1997); Wash. Rev. Code § 2.43.060(2); Admin. Office of the Courts of New Jersey, Standards for Court Interpreting, Legal Translating, and Bilingual Services § 3B:1-6 (1995).

[229] People v. Leon, 91 Cal.App.4th 812 (2001) (reversible error to permit prosecution to call defendant’s interpreter to testify as to movements defendant made in court while victim was testifying, since court failed properly to weigh prejudice against probative value as required by Evidence Code § 352).