Tooby's California Post-Conviction Relief for Immigrants

 

The right to an interpreter is recognized in many jurisdictions by statute.[459]  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.[460]  It is necessary to raise this issue explicitly as a federal constitutional issue from the beginning of the 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 has a California constitutional right to an interpreter,[461] 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.[462]

 

            Interpreters play three different but essential roles in criminal proceedings: “(1) They make the questioning of a non-English-speaking witness possible; (2) they facilitate the non-English-speaking defendant’s understanding of the colloquy between the attorneys, the witness, and the judge; and (3) they enable the non-English-speaking defendant and his or her English-speaking attorney to communicate . . . .  [A]n interpreter performing the first service will be called a ‘witness interpreter,’ one performing the second service, a ‘proceedings interpreter,’ and one performing the third service a ‘defense interpreter.’”[463]  While the three roles are interrelated they are distinct.[464]

 

            The right to an interpreter obviously implies the right to a competent interpreter.[465]  The question of an interpreter’s competence is a factual one for the trial court.[466]  The ideal time to question the qualifications of an interpreter is before s/he is permitted to act,[467] although if the competence of an interpreter becomes an issue after s/he commences performing the duties, it can be raised at that time.[468]  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,[469] i.e., whether the prosecution can demonstrate beyond a reasonable doubt that no harm resulted from the violation.[470]

 

            Federal law on this question is less protective than California law.[471]  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.[472]  A defendant is denied due process if s/he cannot understand, 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.[473]

 

            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.[474]

 

            An indigent defendant has a constitutional right to a court-appointed interpreter to assist the defendant to understand what is said in court and to assist in communication between the defendant and counsel.[475]

 

            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 an interpreter needs to be appointed.[476]

            The defendant has a right to testify in his or her native language on request, even though s/he may speak some English.[477]

 

            The voir dire of the party or witness to determine whether to appoint an interpreter should not be done in the presence of the jury, so as to avoid the risk of prejudice.[478]

 

            Direct communication between a judge and a witness or a party to the case in that person’s source language is equivalent to an ex parte communication.[479]

 

            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 be severely hampered.[480]

          A conviction is invalid if it rests on a guilty plea entered at a proceeding at which the right to an interpreter was violated.[481]  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.[482]  The sentence must also be invalidated if the right to an interpreter was violated.[483]

          Just as each defendant has a right to separate counsel, if there are two or more defendants each requiring an interpreter, a second interpreter is required so that each defendant is able to communicate with respective counsel, since codefendants may have competing interests.[484]

 

            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.[485]

          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.[486]

 

          A jury waiver is invalid if it is made after an attorney translated a waiver form that the attorney was not qualified to translate.[487]

 

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.[488]

 

            PRACTICE TIP:  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.[489]

[459] 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., § 2.43 (1996); Utah Code Jud. Admin. R. 3-306 (1997).

[460] Hicks v. Oklahoma, 447 U.S. 343, 346 (1980); see also Hernandez v. Ylst, 930 F.2d 714, 716 (9th Cir. 1990).

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

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

[463] Chang & Araujo, Interpreters for the Defense: Due Process for the Non‑English‑Speaking Defendant (1975) 63 Cal.L.Rev. 801, 802.

[464] People v. Aguilar (1980) 35 Cal.3d 785, 200 Cal.Rptr. 908, 911.

[465] People v. Estrada (1986) 176 Cal.App.3d 410, 221 Cal.Rptr. 922.  In People v. Mora (1984) 153 Cal.App.3d 18, 199 Cal.Rptr. 904, 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.

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

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

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

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

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

[471] 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  (9th Cir. 1994).

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

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

[474] 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. Teiada, 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).

[475] 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).

[476] 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. 433, 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).

[477] Commonwealth v. Pana, 469 Pa. 433, 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).

[478] 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.”).

[479] 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, FN 353 (Winter 1996) (explaining: “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.”).

[480] 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) (finding: “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.”).

[481] See 28 U.S.C. § 1827(b)(1); 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 (1983), 146 Cal. App.3d 1019, 1024-25.  But see People v. Estany (1962), 210 Cal. App. 2d 609 (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 to submission of transcript from hearing after having had opportunity to review it).

[482] 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. But see 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).

[483] 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).

[484] People v. Rodriquez (1984) 205 Cal.  Rptr. 556, 559-61 (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.”).

[485] People v. Mata Aguilar (1984) 200 Cal.Rptr. 908, 677 P.2d 1198 (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 (1984) 153 Cal.App.3d 757, 200 Cal.Rptr. 404 (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 the 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 ruling, 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.

[486] 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 (1984) 200 Cal.Rptr. 908, 677 P.2d 1198 (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).

[487] United States v. Bailon-Santana, 429 F.3d 1258 (9th Cir. 2005).

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

[489] People v. Leon (2001) 91 Cal.App.4th 812 (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).