Tooby's California Post-Conviction Relief for Immigrants

 

The right to a court interpreter for non- and limited-English speaking parties and witnesses is implicit in the Fifth, Sixth and Fourteenth Amendments of the United States Constitution.  The broad Fifth Amendment right not to be deprived of life, liberty or property without due process of law, the more specific Sixth Amendment rights of a criminal defendant to counsel, to a speedy trial, to be informed of the nature and cause of the accusation, to confront and cross-examine the witnesses, and the Fourteenth Amendment rights to due process and equal protection of the laws are significantly impaired, if not completely denied, when a party to judicial proceedings cannot speak or understand English.[454]  The courts, therefore, have explicitly recognized a limited-English-proficient defendant’s constitutional right to a competent interpreter in criminal proceedings.

 

Not only for the sake of effective cross-examination, however, but as a matter of simple humanness, Negron deserved more than to sit in total incomprehension as the trial proceeded.  Particularly inappropriate in this nation where many languages are spoken is a callousness to the crippling language handicap of a newcomer to its shores, whose life and freedom the state, by its criminal processes chooses to put in jeopardy.[455]

 

In another case, the court explained the right to an interpreter in criminal proceedings as follows:

 

Clearly, the right to confront witnesses would be meaningless if the accused could not understand their testimony, and the effectiveness of cross-examination would be severely hampered [citations omitted].  If the defendant takes the stand in his [or her] own behalf, but has an imperfect command of English, there exists the additional danger that he [or she] will either misunderstand crucial questions or that the jury will misconstrue crucial responses.  The right to an interpreter rests most fundamentally, however, on the notion that no defendant should face the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment.[456]

 

            The right to an interpreter in federal courts was extended to all criminal proceedings through the passage of the Federal Court Interpreters Act.[457]  As amended in 1988, this Act mandates the use of certified or otherwise qualified interpreters in all criminal proceedings for people who primarily speak a language other than English; and it explicitly provides for whom that right is accorded, and how that right should be recognized.  Several states have enacted similar statutes (13 at the end of 1996), and even state constitutional amendments mandating the appointment of court interpreters for limited- and non-English speaking defendants in criminal cases.[458]

[454]  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).

[455] United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970) (homicide conviction vacated on constitutional grounds for failure to appoint an interpreter to a Spanish-speaking defendant).

[456] United States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973).

[457] 28 U.S.C. § 1827 (1978).

[458] See, e.g., California State Constitution, Article 1, § 4; New Mexico State Constitution, Article 11, § 14; D.C. Code § 31-2701-12; Minnesota Rules of Criminal Procedure; Utah Code of Judicial Administration, Rule 3306; Virginia Criminal Code, Chapter 402, § 19.2-164; Washington Code, Chap. 2.43.