Criminal Defense of Immigrants


§ 4.41 A. Standard of Review on Appeal

Skip to § 4.

For more text, click "Next Page>"

The courts are somewhat inconsistent on the question of the standard of review to be applied to appellate claims of violations of the right to an interpreter.  The proper view is that many constitutional rights are implicated by violations of the right to an interpreter, since the interpreter is the vehicle for implementing virtually all constitutional rights to the benefit of a foreign-language speaking defendant.  Obviously, the court does not have discretion to violate the constitutional rights of the defendant.  The standard of review for constitutional claims is determined by the particular constitutional right involved.[236]


                Only after it has been determined that no constitutional right has been violated is the court justified in employing an abuse of discretion standard. [237] “[T]he use of interpreters in the courtroom is a matter within the trial court’s discretion, and . . . a trial court’s ruling on such a matter will be reversed only for clear error.”[238]  The trial court’s determination that a defendant needs an interpreter is also reviewed for an abuse of discretion.[239]  The federal courts of appeals also use the abuse of discretion standard to review on appeal a claim of denial of the defendant’s rights when his attorney acted also as interpreter.[240]  One court also confusingly stated that “As a constitutional matter the appointment of interpreters is within the district court’s discretion.”[241]


On appeal, the Courts of Appeal inquire only whether a violation of the federal Act rendered the defendant’s trial “fundamentally unfair.”[242]  Some courts place the burden on the defendant to establish exactly what errors of interpretation were made.[243]


Findings regarding the necessity to appoint an interpreter are reviewed in most circuits for clear error.[244]  Trial judges are rarely reversed for failing to appoint a court interpreter.  A judge, when exercising his or her discretion in deciding whether to appoint an interpreter must evaluate how fluent the defendant is in the English language by conducting a brief voir dire outside the presence of the jury.[245]

[236] E.g., People v. Rodriguez, 232 Cal. Rptr. 132 (Cal. 1986) (because constitutional rights were implicated, the court of appeals used a “harmless beyond a reasonable doubt” standard of review when determining whether using one interpreter for multiple defendants violated the defendants’ constitutional rights, mandating reversal of their convictions).

[237] See Choi v. State, 497 S.E.2d 563, 565 (1998); State v. Leutfaimany, 585 N.W.2d 200, 208-09 (1998); Montano v. Shelton, 961 F. Supp. 252, 255 (D. Kan. 1997); State v. Montano, 855 P.2d 979 (Kan. Ct. App. 1993); People v. Escalante, 627 N.E.2d 1222, 1227-28 (Ill. Ct. App. 1994); State v. Hernandez, 820 P.2d 380, 382-83 (Idaho 1991); Girardo-Rincon v. Dugger, 707 F. Supp. 504, 507 (M.D. Fba. 1989).

[238] United States v. Mayans, 17 F.3d 1174, 1179 (9th Cir. 1994). 

[239] United States v. Petrosian, 126 F.3d 1232, 1234 n.3 (9th Cir. 1997); United States v. Urena, 27 F.3d 1487, 1492 (10th Cir. 1994) (“We review the trial court’s determination with respect to the appointment of an interpreter only for abuse of discretion.”).

[240] United States v. Martinez, 616 F.2d 185, 188 (5th Cir. 1980) (applying an abuse of discretion standard and holding that “[w]here the court was careful to make clear the defendant had a right to an interpreter, but was assured by defendant’s retained bilingual counsel that he could translate for the defendant and no objection was made, there was no abuse of discretion in failing to supply a court-appointed interpreter.”).

[241] United States v. Bennett, 848 F.2d 1134 (11th Cir. 1988).

[242] See United States v. Huang, 960 F.2d 1128, 1136 (2d Cir. 1992) (where the defendant is appealing based on the quality of interpretation, the ultimate question is whether the translator’s performance has rendered the trial fundamentally unfair; if the translation was materially flawed and there was no reasonable alternative cure, the court could reasonably conclude that a mistrial was required in the interests of justice, but no error was found in this case); United States v. Sanchez, 928 F.2d 1450, 1455 (6th Cir. 1991); Joshi,  896 F.2d at 1309; Valladares v. United States, 871 F.2d 1564, 1566 (11th Cit. 1989); Tapia, 631 F.2d at 1210; Urena. 834 F. Supp. at 1287.

[243] Kotasz v. INS, 31 F.3d 847, 850 n.2 (9th Cir. 1994) (rejecting challenge to translation where petitioner did not “specify which, if any, words would have been translated differently, given a more competent interpreter”).

[244] See United States v. Mayans, 17 F.3d 1174, 1179 (9th Cir. 1994).

[245] See United States v. Ademaj, 170 F.3d 58, 63 (1st Cir. 1999); for a discussion of the court’s inquiry and a sample voir dire, see Grabau & Gibbons, supra, at 269 n.177.