TRYING NON-ENGLISH CONVERSANT DEFENDANTS - THE USE OF AN INTERPRETER

• NCJ Number: 51356
• Journal: Oregon Law Review Volume: 57 Issue: 4 Dated: (1978) Pages: 549-565
• Author(s): G BERGENFIELD
• Date Published: 1978
• Length: 17 pages
• Corporate Author: University of Oregon
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

ISSUES CONCERNING THE USE OF INTERPRETERS FOR TRIALS OF DEFENDANTS WHO DO NOT SPEAK ENGLISH ARE CONSIDERED, AS WELL AS IMPLICATIONS FOR DUE PROCESS RIGHTS AND APPELLATE REVIEW; PROCEDURAL CHANGES ARE RECOMMENDED.

Abstract

A COURT INTERPRETER TRANSLATES THE DEFENDANT'S FOREIGH-LANGUAGE TESTIMONY INTO ENGLISH, THE QUESTIONS DIRECTED AT THE DEFENDANT, AND PROCEEDINGS AND TESTIMONY OF WITNESSES INTO THE DEFENDANT'S LANGUAGE, AS WELL AS FACILITATING COMMUNICATION BETWEEN THE DEFENDANT AND DEFENSE COUNSEL. THE USE OF AN INTERPRETER CAN HAVE BOTH NEGATIVE AND POSITIVE EFFECTS ON PROCEEDINGS; I.E., IN TIME, RELIABILITY OF THE EXAMINATION, AND SUFFICIENT ANSWERS TO QUESTIONS. NONUSE OF AN INTERPRETER CAN ENDANGER THE DEFENDANT'S RIGHT TO DUE PROCESS, BUT THE COURTS' DISCRETION IN SUPPLYING A COURT INTERPRETER IS NOT CLEAR WHEN THERE IS NO REQUEST FOR ONE. MANY COURTS HAVE DISPENSED WITH INTERPRETERS BECAUSE OF PRACTICAL PROBLEMS AND HAVE SUBSTITUTED LESS ADEQUATE REMEDIES. THE SCOPE AND APPROACHES OF APPELLATE COURTS IN REGARD TO DENIAL OF INTERPRETATION FOR NON-ENGLISH SPEAKING DEFENDANTS IS DISCUSSED. REVERSAL OF A DECISION ON THE GROUNDS OF DENIAL OF INTERPRETATION CAN REQUIRE EXTENSIVE DOCUMENTATION OF THE NEED FOR AN INTERPRETER AND THE IMPAIRMENT OF THE DEFENDANT'S TRIAL RIGHTS. THE FAILURE TO MAKE A TIMELY REQUEST FOR AN INTERPRETER MAY CONSTITUTE A WAIVER OF THE RIGHT. CHANGES IN CRIMINAL PROCEDURE TO ALLEVIATE THESE INTERPRETATION PROBLEMS ARE SUGGESTED. THE TRIAL COURT SHOULD CLEARLY INDICATE TO THE WITNESS THE AVAILABILITY OF AN INTERPRETER, HOLD AN EVIDENTIARY HEARING, AND KEEP THE HEARING ON RECORD. AN INTERPRETER SHOULD BE REQUIRED AT THE FIRST REASONABLE OPPORTUNITY AFTER ARREST. THE TRIAL COURT MUST ALSO EMPLOY SEPARATE STANDARDS FOR THE APPOINTMENT OF INTERPRETERS FOR THE COURT AND FOR THE DEFENSE; REASONS FOR DENIAL OF INTERPRETATION MUST BE RECORDED. AN APPELLATE COURT SHOULD AUTOMATICALLY REMAND FOR A HEARING IF NO HEARING RECORD EXISTS FOR A DEFENDANT WHO CAN MAKE A REASONABLE ALLEGATION OF ENGLISH LANGUAGE DIFFICULTIES, AND IT SHOULD CONFINE ITS SCRUTINY TO THE HEARING RECORD AND FORMAL FINDINGS. REFERENCES ARE FOOTNOTED. (DAG)