JURIST Guest Columnist Iryna Dasevich is an LL.M. Candidate at the University of Pittsburgh School of Law, and has interned in the police department and the district court in Turnopil, Ukraine. Here Dasevich discusses the need for interpreters in the criminal justice system, and how courts can effectively assess this need...
ith increasing regularity, many businesses have started providing interpretation services for people with limited English proficiency. Hospitals, banks and even home improvement stores often greet customers with a poster: "We speak your language! Just point to the language that you speak on the list and an interpreter will be called to help you." The US is one of the most multinational countries in the world; every year more than one million people cross the US border looking for a new life, a better future for their children, religious freedom and as refugees from persecution. Despite the private sector's move to hire interpreters for non-English speakers and the growing number of non-English speakers in the US, the criminal justice system has not adopted the necessary measures to protect immigrants' personal liberties.
From 2000 to 2009, according to the Department of Homeland Security, 10,299,433 immigrants obtained legal permanent residency in the US. The immigration of people of different nationalities into the US results in the present situation, where 55.4 million people, or 20 percent of the total population, speak a language other than English at home. Of the total number of people who speak a language other than English at home, only 55 percent claim that they speak English very well, 16.3 percent say that they do not speak English well and 8.1 percent do not speak any English at all. Language difficulties can easily effect someone's everyday activities and needs, such as transportation, medical care and job searches, and it becomes especially significant when important personal interests are at stake.
While businesses are taking necessary measures to protect their profits by providing people with limited English proficiency with the ability to use their services, some of the most important personal interests of new immigrants remain unprotected, such as when an immigrant is charged with a crime and faces trial or when an immigrant's property is in peril. Criminal cases involving a non-English speaking defendant are common; the Bureau of Criminal Statistics estimated that 95,977 non-citizens were held in state custody in 2010. Thus, it is especially important that criminal defendants with limited English proficiency be provided with an interpreter in order to assure that their rights are protected.
The right of a criminal defendant with limited English proficiency to an interpreter is not expressly recognized by the US Constitution or the Supreme Court; however, such a right is implied in the Fifth, Sixth and Fourteenth Amendment. Indeed, the rights of a criminal defendant to due process, equal protection and a fair trial would be substantially hampered, if not completely denied, if a defendant were not able to understand the nature of charges against him and the meaning of the criminal proceedings. The right of a criminal defendant to have effective counsel as assistance, to confront witnesses against him and to protect himself against self-incrimination will have very little or no meaning at all if he is unable to speak English. The right of a criminal defendant to a court-appointed interpreter can also be implied from the prohibition against discrimination based on national origin in Title VI of the Civil Rights Act. The language of the equal access requirement of the act applies not only to the courtroom, but to all federally sponsored programs over which the courts have oversight. Yet, instead of recognizing the right of a criminal defendant with limited English proficiency to an interpreter, the Supreme Court in Perovich v. US held that the determination of whether a particular defendant needs an interpreter is left to a court's discretion. In order to address the growing need for providing interpreting services to parties participating in court proceedings, Congress enacted the Court Interpreters Act in 1978 and, as of today, similar legislation exists in the majority of states. However, as stated in the act itself, it was not enacted to establish new constitutional safeguards, but rather to provide statutory guidance for the use of translators and interpreters in all court proceedings.
An interpreter in court proceedings can be appointed in two ways: when a defendant requests an interpreter directly by a motion or sua sponte, when it becomes known to the judge that the defendant speaks a language other than English and might have a difficulty understanding the court proceedings. In both cases, the judge is given broad discretion to determine both the defendant's English proficiency and the interpreter's qualifications. While it is established that the judge is in a better position than anyone else participating in a criminal trial to make such a determination, it often results in judicial error. Most judges use their own understanding of English proficiency to determine the level of English needed to participate in a trial, due to the lack of uniform standards to guide such a determination. Many criminal defendants speak English well enough to maintain day-to-day living in the US, but this is not sufficient to fully comprehend complicated criminal proceedings. Even when the defendant speaks English well on an everyday basis, the importance of criminal proceedings and their outcomes might diminish his ability to fully comprehend everything that is going on in the courtroom. Also, factors such as emotional distress, the complexity of legal language and cultural differences might diminish a defendant's ability to understand English in a courtroom setting.
When the issue of the need for an interpreter arises at a trial because of either a defendant's request or a judge's own observation, the judge has an obligation to conduct a voir dire questioning of the defendant to determine whether the defendant's limited English proficiency will hamper his capacity to participate fully in the trial. In evaluating a defendant's English proficiency, a judge must be mindful that, even though a person might speak good conversational English, this is not enough to be able to comprehend complicated criminal proceedings. Judges often think that if a defendant is responsive to his questions and is able to understand what he is asking, even if the defendant speaks broken English, the assistance of an interpreter is unnecessary. The other mistake judges tend to make is determining an individual's English-speaking ability using equivocal factors such as age, education, occupation, time spent in the US and country of origin. While these factors will help a judge to decide whether a defendant needs the help of an interpreter, they should never be considered without conducting a voir dire questioning of the defendant. To avoid mistakes when determining a defendant's English proficiency, courts need to have a standardized approach to the voir dire questioning of a defendant, when making a determination about his ability to participate in a trial with or without an interpreter. Some model voir dire questions already exist to help judges in the process, but they need to be amended in order to enable judges to make more accurate determinations. For example, the existing questionnaires that are used by courts contain questions like:
- Please tell the court your name.
- What is your address?
- When is your birthday? When were you born?
- How old are you?
- Where were you born?
- How did you get to court today?
While these questions might be helpful for identification purposes, they should not be used for determining someone's English proficiency. Courts should follow a much more stringent procedure when determining the ability of a criminal defendant to communicate and comprehend the English language for the purposes of court proceedings. Because basic knowledge of English is not enough and a defendant should be able to speak English at a high level, the questions that a court should ask a defendant in voir dire
should reflect the level of English that a court is trying to establish. The courts should perform a two-tier test for determining English proficiency. The first part of the test should contain questions for identification purposes only and not test a person's ability to speak English. These are necessary prerequisites that make it more or less likely that someone will have better or worse English proficiency. The first part of the test should contain questions like:
- How long you have been living in the US?
- What is your native language?
- Where are you from?
- What is the highest level of education you achieved?
- Which language do you speak at home?
For example, based on these questions, a judge might determine that a defendant is from Tanzania, has been in the US for seven years, has graduated from college, holds a master's of arts degree in philosophy, speaks Swahili as his native language and speaks English, since it is an official language in Tanzania, and works as a teaching assistant in a community college. From this information, a judge is more likely to presume that this person will speak better English than someone who, for example, has been in the US for 15 years, is originally from Moldova, has only a secondary education, speaks only Moldovan at home and has been working in the construction business with a group of Eastern-Europeans. Thus, the information collected from this first part of the questioning is extremely important, but it should be considered in conjunction with the questions from the second part of the test.
The second part of the test will determine a defendant's ability to speak, comprehend, read and write in the English language on a level beyond survival English. It is very useful to look at the linguistic approach in this part of the test used by experts in the foreign language field. Testing methodologies used by expert linguists such as re-telling a story, describing different objects, activities, people, reading a text and answering related questions are much more useful to determine a defendant's English proficiency. The second part of the test should consist of two subparts: an oral proficiency test and a reading proficiency test. An oral proficiency test is generally conducted by using mini-questionnaires about the person's home country, occupation and personal interests. It can also be conducted with a picture stimulus, where the person is shown a picture or a set of pictures and asked to describe what he or she sees reflected in the picture. A reading proficiency test is performed by a presenting an excerpt from a text to a person and asking him or her to read it, circle unknown words and to answer posed questions. The evaluation of a person's English proficiency then will be based on his or her performance on the second part of the test in conjunction with information received from the first part of the test.
While courts might be concerned with the time and the cost that it will take to perform this testing, they must be mindful of the interests of the defendant that are in peril. When standardized and applied in each situation to each eligible defendant, this test will diminish a possibility of interruption of a trial because of inability of a defendant to understand the proceeding and eliminate a possible grounds for an appeal. In a society where 20 percent of the population speaks a language other than English at home, the need for interpretation is not a rare occasion, but a recurring persistence. As Judge Kaufman said in US ex rel. Negron v. State of New York, "[p]articularly 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 choses to put in jeopardy."
Iryna Dasevich received her bachelor's and master's degrees in law from Yaroslav the Wise National Law Academy in Kharkiv, Ukraine, in 2006. Dasevich interned at the police department, district court, city notary and city magistrate's offices in Turnopil, Ukraine. She also worked in a legal clinic, providing free legal services to elderly citizens.
Suggested citation: Iryna Dasevich, The Right to an Interpreter for Criminal Defendants with Limited English, JURIST - Dateline, Apr. 15, 2012, http://jurist.org/dateline/2012/04/iryna-dasevich-criminal-interpreters.php.
This article was prepared for publication by Elizabeth Imbarlina, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org