INTERPRETER ISSUES ON APPEAL

by Virginia Benmaman
First Printed in PROTEUS Vol. IX, No. 4 -- FALL 2000

Court interpreters and attorneys have a special interest in the issues raised on appeal that involve foreign-language interpretation. In this paper I will focus on the most important interpreter-related cases of the past twenty years, especially those of the past decade, with occasional reference to earlier appeals which have been highly significant.

For the most part, appellate issues related to interpreters have not dealt so much with errors of interpretation as with procedural errors, matters for which both the trial court and counsel are ultimately responsible. As will be shown, even when the actual performance of the interpreter in court is questioned on appeal, the higher courts have not been overly impressed with the arguments presented. Despite hundreds of cases appealed on grounds related to the use and/or performance of interpreters, slight errors of interpretation are less likely to become the reason for a reversal than we might believe. However, past decisions are not necessarily a prediction of future rulings. The increasing volume of interpreted cases nationwide will probably result in more appeals involving some aspect of the interpretation process. Higher courts may begin to scrutinize the elements of error with different eyes and apply new criteria relevant to the abuse of discretion standard. Let us first review some background.

Due Process and Equal Access

Bear in mind that no provision in the federal constitution guarantees the right to an interpreter. The rights of all individuals, including non-English speaking litigants, are referred to in constitutional amendments, especially the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution. The Fifth Amendment guarantees that an individual cannot be deprived of life, liberty or property without due process, fundamental fairness and equal protection under the law. The Sixth Amendment asserts that a defendant has the right to be meaningfully present at his or her own legal proceeding. Presence implies not only physical presence, but also access to direct knowledge about the proceedings, in order to a) assist in one’s own defense by active participation; b) receive effective assistance of counsel and provide counsel with informed and intelligent input; c) confront the government’s witnesses and cross-examine them; and d) waive these constitutional rights knowingly, intelligently and voluntarily. The Fourteenth Amendment extends the application of these rights to resident citizens of any and all states. Case law frequently invokes these amendments and attorneys regularly cite them in their appellate briefs.

Precedents

Although the United States Supreme Court has never directly addressed the right to an interpreter in criminal or civil cases as a constitutional issue, many courts on the state and federal levels have upheld this right in criminal proceedings. The landmark case in which this view was firmly established came to federal court via a pro se habeas corpus petition by a state prisoner who had been convicted of murder in a New York State criminal case and sentenced to 20 years to life. The defendant, Rogelio Nieves Negrón, was indigent and spoke no English. His court-appointed attorney spoke no Spanish. No communication existed between counsel and defendant, nor were any of the trial proceedings made comprehensible to the defendant except for brief and spotty instances in which an interpreter, employed on behalf of the prosecution, translated in summary fashion into Spanish for Negrón. Negrón’s own testimony and that of two Spanish-speaking witnesses were interpreted into English for the benefit of the court. (Note that case law of the 19th and early 20th century indicates that the only interpreters paid for and provided by the court were exclusively for witnesses.) Twelve of the fourteen witnesses testified against him in English. None of this testimony was comprehensible to Negrón. In U.S. ex rel. Negrón State of New York, 310 F. Supp. 1304 (EDNY 1970), Judge John Bartels held that Negrón’s trial lacked the fundamental fairness required by the due process clause of the Fifth Amendment and the Fourteenth Amendment, which extended these guarantees to the states. This was the first federal court ruling stating that a Spanish-speaking defendant in a criminal case was entitled to the services of an interpreter, and that failure to provide a translator rendered the trial constitutionally infirm. Judge Bartels’ ruling was appealed and his decision was affirmed by the Second Circuit Court of Appeals 434 F.2d 386 (2d Cir.1970)

Appointment of An Interpreter

Since the Negrón ruling, several major events have bolstered the call for equal access to due process by linguistic minorities, such as the Court Interpreters Act of 1978 (amended in 1988); legislation in several states mandating the presence of interpreters in cases involving individuals with minimal English skills; and as of this writing, the required certification of practicing interpreters in twenty-two states. Yet we must not lose sight of the fact that the trial court has wide discretion in determining whether an interpreter is necessary for a defendant. Appellate opinions commonly hold that the appointment of an interpreter, as well as determination of who is qualified to serve as interpreter, is within the trial court’s sound discretion. Such is the case in every state, and this judicial exercise is considered an abuse of discretion only if the defendant has thereby been deprived of some basic right.

The standards of review that appellate courts apply to the issues raised are "abuse of discretion" and the "plain error" doctrine.

Abuse of Discretion:  The defense must make a timely and specific objection during the proceedings which is noted on the record. Proof must be presented to the trial court that a problem has occurred with an interpreter-related issue which is prejudicial to the defendant’s case. This may be a procedural error related to the need and presence of the interpreter, or to the interpreter’s actual performance. Once proof is presented, the trial court must rule accordingly. A presiding judge can take corrective measures only if and when some difficulty with the interpreter is made known. Without this procedure, there can be no grounds for appeal. The sentiment of the appellate courts was aptly stated in

U.S. v Joshi, (896 F2d 1303, 11 Cir 1990): "It would be an open invitation to abuse to allow an accused to remain silent throughout the trial and then, upon being found guilty, assert a claim of inadequate translation."

In general, the Court of Appeals looks to the effect of the alleged error. If it finds the error was not prejudicial, the trial court’s ruling will be affirmed. Prejudice has not resulted if:
  1. The evidence concerning error was irrelevant or inconsequential. Sketchy arguments on the importance of untranslated remarks cannot be the basis for a finding that the trial judge abused his discretion.
  2. The error was corrected once brought to the attention of the trial judge.
  3. Cross-examination was made concerning the matter and no further objection was raised.
  4. The evidence against the accused was so overwhelming that errors in interpretation were of little consequence.
  5. Untranslated evidence was presented in the defendant’s own language (from the witness stand) and therefore did not require translation.

Plain Error Doctrine:  If an error is not objected to at trial, an appeal may be sought under the plain error doctrine. This standard requires a showing that the error was egregious, that it affected substantial rights, represented a miscarriage of justice, or resulted in an unfair trial. This standard requires greater substantiation than the standard applied to objections made during trial. In general, reversals based on plain error are seldom granted.

Issues Raised On Appeal

1. Failure to Appoint an Interpreter

Failure to appoint an interpreter was the most common grounds for appeals during the 1970’s and early 1980’s. Unfortunately, failure to appoint still occurs today. Judicial discretion-- with or without an evidentiary hearing-- is applied to assess a defendant’s knowledge of English and language abilities. How monolingual or even bilingual judges can accurately assess language skills has not been fully debated, all the more curious given that foreign language educators are still grappling with developing an appropriate methodology for determining language proficiency. Another question remains unanswered as well. How high must the language barrier be before a defendant has a right to an interpreter? Simple questions asked during a voir dire (if indeed a voir dire is held) for the purpose of eliciting a verbal response in English from a defendant frequently require monosyllabic answers, which provide little insight into the comprehension or communication ability of a minimal English speaker. Judicial decisions not to appoint an interpreter have also occurred in cases in which a) the court determined that defendants hiring private counsel could afford their own interpreter, b) the defense failed to request an interpreter, and c) counsel for the defense also served as interpreter. However, in the following decisions, the judgments of conviction were reversed and the cases remanded with specific instructions.

State v Rodriguez N.J. 1996 (Super 129, 133-37) No interpreter was present in municipal court when the defendant was convicted of DUI and leaving the scene of an accident. The appellate court reversed, holding that "There can be no waiver of right to interpreter without knowing, voluntary and intelligent declaration on the record by the defendant, and the trial court must provide an interpreter at public expense if defendant requires one and cannot afford to pay for these services."

In Ohio v Fonseca, 1997( 124 Ohio, App.3d 231), the defendant was charged with forgery. During initial appearance in municipal court, the judge read the charges and then asked how the defendant wished to plead. The following exchange took place.

The Court: You got anybody here that understands English better than you?
Unknown Person: I do, Sir.
The Court: Well, why don’t you just come up here. Are you charged with something too, or are you his friend?
Unknown Person: [Inaudible]
The Court: Well, you can come up here. Sounds to me like he better enter a guilty plea, seeing as he can go to jail big time.
Unknown Person: He said he’s guilty.

The judge accepted the guilty plea and stated that the appellant’s sentence would be thirty days, and the unknown person replied "He says, ‘okay!” Later Fonseca filed a motion to vacate his guilty plea, which was overruled by the trial court. The Appellate Court stated upon review:

"Obviously, the plea was not knowingly made. The judge failed to inform him of his rights of counsel and a continuance. Appointment of counsel will be made at no charge to the defendant. The defendant had the right not to make any incriminating statement against himself. His plea is vacated on those grounds. Judgment reversed, and the matter is remanded to the trial court for proceedings consistent with this opinion."

In New York v Serna, 1999, NY AD. 3 Dept. (WL 357316), the defendant claimed he did not enter his guilty plea knowingly and intelligently because he was unable to communicate with his attorney due to language difficulties. No interpreter was provided for the plea allocution. Defendant was never questioned about his language proficiency, nor did he waive on the record the right to an interpreter. Counsel was relieved and new counsel appointed to address issues on remand to the trial court.

A slightly different situation occurred in Giraldo-Rincón v Dugger, 1989, MD FLA (707 F Sup 504). Although the Colombian native had bilingual attorneys representing him on narcotics charges, the trial judge denied defense counsel’s request for the appointment of an interpreter. He did so without inquiring into the petitioner’s ability to pay for one, on the ground that the defendant, who counsel asserted was indigent, could secure and pay for his own interpreter because he had retained an attorney. The defendant could not comprehend the English testimony of 11 witnesses. Occasionally counsel would relate what was transpiring at trial. On a habeas corpus petition, the appeals court concluded that the petitioner’s trial lacked the fundamental fairness required by due process, and the judge’s refusal to inquire into the petitioner’s need for and ability to pay an interpreter violated his rights under the Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution. Habeas corpus relief was granted.

Other types of proceedings have also been reversed for failure to appoint. Several examples are presented here. In Ahmed v. Quality Staffing Solutions, 1999, Min. App. (WL 233347), Ahmed, a Somali immigrant, failed to timely file continued claims for insurance benefits because she had difficulty understanding the process and was not provided an interpreter. In Melese v Kebede, 1999, Wash.App.Div.1 (WL 350833), Melese, an Ethiopian Amharic speaker and mother of a three-year-old, could not express herself in a custody battle. Her attorney assured the court that no interpreter was necessary, and the plaintiff continued to give brief monosyllabic answers. This failure to provide an interpreter along with other errors resulted in a reversal and remand of the case.

In Franklin v District of Columbia 1998, USCA (No. 97-7162), prisoners brought a class action suit against the District of Columbia because of failure to provide qualified interpreters at parole hearings, disciplinary hearings and for inmates’ medical care. The Appeals Court agreed that this was a violation of Fifth and Sixth Amendment rights and ordered provision of interpreters at "all stages of disciplinary classification, housing, adjustments, and parole hearing process."

2. Ineffective Assistance of Counsel

In Diaz v The State of Texas, 1995 (Blue Book Citation Form TEX 327), the defendant was convicted of aggravated possession of marihuana. Among seven points on appeal, one claimed ineffective assistance of counsel related to the role of the interpreter. On the day of the trial, counsel left defendant alone with an interpreter to have various documents and waivers of rights translated. When counsel returned, he asked if there were any questions. Receiving a negative answer, counsel had defendant sign the various English-language documents and then signed the certificate and other forms indicating that he had personally read and explained the waiver of rights and contents of the documents. The Appeals Court ruled that the trial court did not properly admonish the defendant orally on the range of punishment, nor explain the contents of several written documents. The judgment was reversed and the case remanded to the trial court.

3. Bias and Conflict of Interest

In two Texas cases, Costello v State, 1991,TEX App Corpus Christi (807 SW 2d8), and People v Montoya, 1991,TEX App Corpus Christi (811 SW 2d 671), the court ruled on appeal that there was no error in infringement of right to confrontation when Spanish-speaking bailiff was appointed to interpret during the regular interpreter’s absence, and no objection had been raised during trial.

A habeas corpus petition in Baez v Henderson, 1992, SDNY( LEXIS 774), claimed that at sentencing, the bilingual presiding judge had translated the proceedings into Spanish for the defendant as well as defendant’s own statements into English for the record. The petition was rejected.

In State of Tennessee v Heck Van, 1993 (864 S.W 2d 465), the defendant charged with felony murder of three victims received three death sentences. At trial the Chinese interpreter who interpreted the testimony of the key prosecution witness was related to the victims (his brother and sister-in-law) and was the grandson of the key witness. According to the trial court, no competent disinterested interpreter was available for the rare dialect of Chinese. The trial judge was satisfied that the interpreter was competent and unbiased. The appeals court affirmed all convictions and two death sentences, and remanded one defendant for resentencing.

In State v Tamez, 1987, LA App 1st Cir (506 So 2d 531), guilty pleas to marihuana possession charges were interpreted by a co-defendant. The judge made no attempt to find a neutral interpreter. The appeals court reversed, based on the finding that use of an unqualified, unsworn interpreter who was the defendant’s co-defendant rendered the plea and conviction invalid.

In Balderrama v State of Florida,1983 (Second District No. 83-657), the defendant’s brother, a former co-defendant, chose to cooperate with the prosecution and acted as the interpreter during the remaining brother’s change of plea hearing. The conviction was reversed and the case remanded with instructions.

4. Confidentiality

State v Izaguirre, 1994 (272 NJ Super) The same interpreter was used for pretrial interviews with defense psychiatrist and state’s psychiatrist. The claim on appeal was that defendant’s conviction was tainted. The court affirmed the conviction and ruled that absent a showing of harm such as breach of confidentiality, the use of one interpreter does not invalidate a conviction. However, the appellate opinion stated it would be preferable to have two different interpreters in such circumstances.

5. Uncertified Interpreter Appointed

The trial court has broad discretion in matters regarding selection of the interpreter.

Generally, reversible error does not result from the presiding judge’s appointment of an uncertified interpreter if (1) a timely objection is not raised; (2) there is no substantiated objection to the selection or performance of same; or (3) it was shown (upon request) that a certified interpreter was not reasonably available. As is stated frequently in appellate opinions, the trial court has broad discretion in matters regarding selection of the court interpreter.

On the federal level, various cases have been appealed on this issue. In both U.S. v López, 1993, CA 6 Ohio, (US App LEXIS 32103), U.S. v Hernández, 1994, CA6 Ohio (WL 75846) and U.S. v Paz, 1992 Texas (CA 5), the appellants claimed that the appointment of an "otherwise qualified interpreter" resulted in inadequate interpretation at change of plea hearings. No objection had been raised during the hearings to the services of the interpreter. In the Lopez opinion, the court acknowledged,

“The Act [Court Interpreter’s Act] ensures that a party has comprehension of the proceedings and the means to communicate effectively with counsel. Accordingly, our ultimate determination in addressing a claim of inadequate interpretation is whether such failure rendered the proceeding fundamentally unfair. Given the broad discretion accorded the trial judge under the Act, we conclude that the district court did not err in finding that Lopez’s understanding of the plea hearings was adequate."

Similar opinions were rendered in the two other cases.

State appeals courts have handed down similar rulings. In State v Puente-Gómez, 1992, App (21 Idaho 702), the trial judge appointed an ‘otherwise qualified interpreter’ whose performance did not raise objections during the proceedings. A post-conviction objection was overruled. The court stated that determination of an interpreter's qualifications is a matter of the trial court's discretion, and an objection with supporting evidence is required to preserve an error on the record.

Two Washington State cases are noteworthy. In State v Pham, 1994 (75 Wash App 633), reversal was denied in the molestation and rape of a nine-year-old speech-impaired Vietnamese girl. The victim testified through an uncertified female interpreter although a certified male interpreter was available. Good cause was noted on the record. At pretrial competency hearing, the victim had testified through a male interpreter and was not comfortable. On appeal, the court ruled that given the nature of the proceedings and the cultural differences the victim experienced, the trial judge did not err in using a non-certified interpreter. Counsel did not object at trial and therefore could not raise the issue for the first time on appeal unless the error had been of constitutional magnitude. Additionally, the opinion stated, "A defendant has a constitutional right to a competent interpreter, not necessarily a certified interpreter." There was no indication the interpreter was incompetent.

The Pham decision was cited as precedent in State of Washington v José López Serrano, 1999 (Wash. App Div. 3). The defendant was convicted of second-degree murder and second-degree unlawful possession of a firearm. The appeal alleged that error arose from the fact that the interpreter was ‘qualified,’ but not ‘certified.’ The court found that the defendant failed to show that the interpreter was incompetent. Although the interpreter was ‘qualified’ and not ‘certified,’ there was no violation of the appellant’s constitutional rights.

6. Attorney Serving as Interpreter

On occasion, bilingual attorneys believe their language skills are sufficient to render unnecessary the presence of an interpreter. Some judges have perceived this double-duty as an economic and administrative savings to the court. However, ethical questions linger. If the accused makes an incriminating statement unwittingly, can counsel assert attorney-client privilege? Would the client have to defend himself in an adversary system without an advocate? While counsel is speaking for his client or examining a witness, who is interpreting the proceedings for the defendant? While counsel is interpreting, who is representing the client’s interest? And finally, bilingual ability does not automatically translate into interpreting ability. Such ethical dilemmas, allegiances, and questions of competence suggest questionable practice in these instances.

Appellate courts have held differing opinions on this issue. In Briones v Texas, 1980, Tex Crim (595 SW 2d546), and State v Zambrano, 1989, Ohio App. Sandusky Co (LEXIS 3951), the courts held that the attorney’s bilingual competence was adequate to protect the defendant’s Fourteenth Amendment rights. However, in Giraldo-Rincón v Dugger, 1989, MD FLA (707 F Sup 504) and in State v Kounelis, 1992 (258 NJ Super 420), the Courts of Appeals reversed on this issue.

7. Borrowed Interpreter

Appellate courts have not had a consistent response to claims of due process violations resulting from ‘shared’ or ‘borrowed’ interpreters. Several convictions were overturned on these grounds in the 1980’s. In People v Resendes, 1985 (210 Cal. Rptr 609), the appellant contended that providing only one interpreter for himself and his co-defendant violated his Sixth Amendment right to an interpreter throughout the proceedings and to effective assistance of counsel. The appeals court ruled that in joint criminal prosecutions of two defendants who did not speak English, requiring the defendants to share one interpreter inhibited effective communication with counsel and therefore constituted reversible error. The court relied on the California Supreme Court decision in People v Aguilar, 1984 (35 Cal.3d785). In this appeal of a murder conviction, the Court held that the defendant was deprived of his constitutional right to a proceedings interpreter when the trial court borrowed the interpreter to translate testimony of two state witnesses.

However, in People v Baez, 1987, 4th Dist (195 Cal App 3d 1431), the appeals court found that defendant’s ability to communicate with counsel was not improperly limited by "borrowing of the interpreter for witness testimony." The defendant had not received translation of colloquy between trial court and counsel or of trial court’s ruling. In affirming the conviction, the appeal court observed that English-speaking defendants rarely understand much of the legal exchange among court and attorneys, and that no discussion was important enough to have affected the trial’s outcome.

In People v Rodríguez, 1990, NY 1st Dept (165 App Div 2d 705), the court held that a Spanish-speaking defendant was not entitled to appointment of a second interpreter when the defendant’s interpreter was used to translate testimony of Spanish-speaking witnesses because the defendant was able to comprehend the witness’ testimony and the judge permitted the interpreter to return to defense table whenever the defendant needed to confer with counsel.

Rarely is a case overturned because of interpretation errors alone.
In People v Chávez, 1991,4th Dist (321 Cal App 3d 1471), the appellant alleged trial court’s error in requiring a non-English speaking defendant charged with grand theft to share the interpreter with a co-defendant. The appeals court held that sharing an interpreter was harmless beyond a reasonable doubt, as there was no evidence of prejudice suffered by the defendant.

Similarly, in U.S. v Yee Soon Shin and Yong Woo Jung, 1992 CA 9, (953 F2d 559), the appeals court ruled that two defendants sharing one interpreter did not violate the defendant’s rights under the Fifth and Sixth Amendments, nor did the Court Interpreters Act [28 U.S.C.1827 (d)(1)] require separate interpreters for each defendant in multi-defendant cases.

Washington v Jairo Gonzáles-Morales, 1999 (WL 439091), a recent decision by the Supreme Court of Washington, arose out of a case in which the trial court had permitted a court-appointed Spanish interpreter to interpret for a prosecution witness as well. On appeal it was contended that this use of a ‘borrowed interpreter’ had prevented client and counsel from communicating while the Spanish-speaking witness was testifying. The Appellate Court, referring to other state and federal precedents which had denied the claim of abuse of discretion when ruling on this same issue, concluded that the petitioner’s constitutional right to counsel was not violated. This particular case was the first time the issue of a ‘borrowed’ interpreter had come before the Washington state appellate court. The issue then was further litigated in the Supreme Court of Washington, which ruled that the Court of Appeals was correct in affirming the conviction.

In deciding this issue, appellate courts continue to examine such factors as whether the trial court afforded the defendant the opportunity to confer with counsel at all times during the proceedings, the duration of the testimony, the ability of the defendant to understand testimony of non-English-speaking witnesses, the location of the interpreter in the courtroom and his or her accessibility to the defendant, and the general availability of interpreters to the courts.

8. Accuracy of Interpretation

Many courts have expressly or implicitly recognized that minor or isolated inaccuracies, omissions or other translation problems are inevitable, and as such, do not warrant relief from a criminal conviction if the translation is otherwise reasonably timely, complete, and accurate, and the defects do not render the proceeding fundamentally unfair. The critical determination depends on whether discrepancies affect material matters and issues central to the case. Courts have stated there is no such thing as a perfect translation, and therefore some minor discrepancies are inevitable. Since there is no precise criterion for an ‘accurate translation,’ appellate review must focus on how the error affected the ability to present a defense.

Interpreter errors are subject to review if the record shows that a witness’s answers are unresponsive or confusing and if objections to the interpretation are placed on the record. In each case the appeals court reviews the testimony to determine if the errors were prejudicial to the defendant.

Rarely is a case overturned because of interpretation errors alone. Only one case stands out in this instance, State of Illinois v Starling, 1974, 1st District (21 Ill App 3d 217). Here the court focused on the central question of whether the testimony of the sole prosecution witness was ‘understandable, comprehensible and intelligible.’ Both prosecutor and defense counsel had complained repeatedly of the ineffectiveness of the interpreter, and the trial judge had frequently admonished the interpreter for engaging in unrecorded discussions with the witness. The appellate ruling held that the defendant was denied his right to confront the state's sole witness when difficulties in interpretation became apparent and that the trial judge had indeed abused his discretion in not replacing the interpreter. The robbery conviction was overturned and the case remanded for a new trial. The appellate ruling stated, "The only cure upon discovery of an incompetent interpreter is to appoint another interpreter, one who will translate truly, competently, and effectively, each question and answer with due regard for his or her oath to do so.”

In Pérez Lastor v INS, 2000 (Case Number 98-70266), the U.S. Court of Appeals for the Ninth Circuit in reviewing a decision by the Board of Immigration Appeals held that the deportation hearing of an asylum seeker did not satisfy the requirements of due process primarily because of incompetent translation. The opinion stated, "It is extremely difficult to pinpoint direct evidence of translation errors without a bilingual transcript of the hearing. Even without that aid, the English-language transcript of Pérez-Lastor’s hearing provides direct evidence that the translator did not communicate the IJ [Immigration Judge]’s words to Pérez-Lastor."

These two cases notwithstanding, courts have stressed that occasional lapses from the ‘complete and accurate’ standard of interpreting do not render the proceedings fundamentally unfair. “If the meaning, substance and language of the testimony is conveyed, occasional lapses of word-for-word translation does not constitute reversible error." (U.S. v Joshi, op cit).

A defendant has a constitutional right to a competent interpreter, not necessarily a certified interpreter.
In U.S. v Gómez, 1990, FL CA 11(902 F2d 809), the interpreter had taken liberty during witness testimony. When the prosecutor asked the witness where the defendant generally sold cocaine, the interpreter said: “Generally he sells at a location he says is the disco, but what he means is the Elks Lodge on Carson Street." She inserted a gratuitous explanation that when the witness said ‘disco’ he meant ‘Elks Lodge.’ The court concluded that while defendants have no constitutional right to a flawless translation, interpreters should strive to translate exactly what is said and should not "embellish" or "summarize" live testimony. The error was prejudicial to the defendant, but proof against him was so overwhelming that the error did not render the entire trial so fundamentally unfair as to require a reversal of conviction.

Other alleged or actual interpretation errors have been cited on appeal, but appellate courts reviewing these issues have affirmed the trial courts’ rulings. In Spruance v State,1994, Del Sup (LEXIS 106), the appellant convicted of attempted robbery and unlawful sexual intercourse claimed that the victim’s testimony was not interpreted verbatim into English. The interpreter first translated, "The defendant took down her underwear" and then rephrased the answer when counsel asked her to repeat the statement, saying, "The defendant pulled them down." The trial judge ruled that when the interpreter adequately conveys the testimony’s substance and meaning, and the translation is not subject to grave doubt, failure to translate exactly is not prejudicial.

In Ohio v Sánchez,1986,OH App (LEXIS 6536), the appellant asserted that the Spanish interpreter was not efficiently translating Puerto Rican Spanish into English. The court ruled that although dialects may be different, the interpreter did demonstrate impressive credentials and experience. Relying on a precedent, the court held that a "defendant is entitled to a fair trial, not a perfect one."

In Liu v State, 1993, Del Sup (628 A2d 1376), a Chinese defendant convicted of murder, arson, and burglary claimed that the testimony of a prosecution witness was not accurately translated because of dialect differences between the interpreters and the witness. An anonymous Asian spectator had approached the prosecutor during trial and commented that one of the interpreters was doing a poor job. The record showed that the substance and meaning of the testimony was conveyed to the jury. The conviction was affirmed.

In a Rhode Island case, State v Mora, 1993, RI (518 A2d 1275), during trial, the defendant presented a list of discrepancies between his Spanish testimony and the interpreter’s renditions (as noted by defendant’s own interpreter), objecting to the overall performance of the interpreter. A mistrial was requested on the second day of trial, and denied. On appeal, it was argued that the defendant was made to appear distraught and evasive as a witness. Additionally, the appeal alleged that the defendant was not allowed to engage in narrative, and answers had to be split into two parts because the interpreter couldn’t remember long sequences. The Appeals Court ruled that the trial judge had exercised proper discretion in allowing the interpreter to continue, noting that the interpreter requested repetitions so as to interpret the defendant’s answers accurately, and that the trial judge instructed counsel to limit the length of answers so the defendant could testify though an effective interpretation process. The conviction was affirmed.

State v Rodríguez,1994, LA App, 4th Cir (835 So 2d 391) dealt with what were perceived as non-verbal errors. The appellant claimed the interpreter did not adequately convey the defendant’s emotions and passions while rendering his testimony. The court held there was no denial of due process. No example cited in the appeal showed any inaccuracy.

Unless interpretation errors are egregious and challenged on the record with an offer of substantial proof, and no satisfactory remedy is provided, the appellate courts are unlikely to reverse the trial courts’ rulings. In Rodríguez v State, 1999, Supreme Court of Georgia (WL 371629), the court held that despite the use of an uncertified interpreter, and interpretation errors in witness testimony before the jury, Rodriguez failed to show in which respect the faulty interpretation was harmful. The particular testimony at issue was cumulative of the testimony of other witnesses. Thus, the inaccuracies were harmless and did not alter the outcome of the case.

In Check v State, 1999, Ga App (WL 236291), two witnesses had trouble understanding the interpreter’s questions at certain points in the trial. Check used this evidence as grounds for appeal, but the court found on the basis of all the facts that the defendant was guilty beyond a reasonable doubt.

In Levario v Texas, 1999, Tex. App-Texarkana (WL 289239), the appellant sought to have his conviction overturned because the court-appointed interpreter did not have adequate skills. However, since the defense failed to object to the qualifications and made no record, he waived his right to any recourse. The Court of Criminal Appeals ruling stated that "a defendant must impeach accurate or incomplete translation to cure it."

In New York v Staley, 1999, N.Y.App. Div (LEXIS 6536), the appellant failed to establish during trial that an interpreter-related problem had occurred or that there was error in the interpretation of the complainant’s testimony.

In the case of U.S. v Mata, 1999 (4th Cir.Virginia), the interpreter admitted to defense counsel that she was having difficulty translating some of the legal terms and it was evident that Mata was not receiving a continuous simultaneous interpretation. However, Mata and counsel failed to object to the quality of translation during the trial. Despite the alleged lack of qualifications, evidence of guilt was found to be overwhelming and even the deficient translations “had not prejudiced Mata in any way."

In South Carolina, State v Pérez, 1999 (WL 157644) arose from a case in which a defendant was convicted of murdering his wife after 4 days of marriage. The appellant claimed he was denied an interpreter at his criminal trial. The trial court had allowed an interpreter to convey questions to the defendant, and if he testified, to interpret both the questions and answers. The defendant asked for pauses in the trial at certain crucial points to allow the interpreter time to explain the proceedings to him. The trial judge stated: “Well, I assume the interpreter has been in the business long enough that she can sit there and interpret for him everything that’s going on. If it gets to be a problem, you will have to let me know; then we’ll cross that bridge when we come to it." Nothing further was said, and the defense never objected to the court’s ruling, and never mentioned any problems. On appeal it was also contended that the trial judge had failed to administer an oath to the interpreter. No objections were raised on either point during trail, and therefore these issues were not preserved for appeal.

In Kan v Texas, 1999, Tex. App San Antonio (WL 417827), Kan claimed that the Mandarin Chinese interpreter provided inaccurate and incomplete translations. Texas law does not require specific qualifications for interpreters, but only states "sufficient skill in translation and familiarity with the use of slang." [Tex. Code of Crim, Proc. Ann.art, 38,30 (Vernon 1989).] During the trial it was clear to the court that the interpreter was having trouble with the legal terms and was not able to keep pace with the rapid questions by the attorneys. The court ruled that the interpreter’s difficulty was only a result of the attorneys not allowing sufficient time for translation. Kan was barred from appealing based on the accuracy of the translation since specific problems were not raised and documented during the trial. The conviction was affirmed.

Conclusions

Based on these examples drawn from several hundred appellate opinions, we can formulate the following general conclusions:

The majority of issues raised on appeal are procedural and beyond the interpreter’s control. Objections to interpreting errors must be made during the proceedings and preserved for the record. Many interpreting issues are in fact resolved at the trial court level. Errors not preserved on the record cannot be raised on an appeal to which the "abuse of discretion"standard applies. Review under the "plain error"standard is far more stringent, and for the appeal to succeed a showing must be made of a substantial violation of the fundamental rights to a fair trial.

What can interpreters learn from these examples? The following suggestions may be considered.

  1. Review and apply the Interpreters Code of Professional Conduct. These are available from some court administrations and from professional organizations.
  2. Interpret only in the presence of, and at the direction of, court and counsel. Do not assume any independent role.
  3. Maintain confidentiality of all interpreted sessions.
  4. Do not engage in discussions with defendant or relatives. Request permission from the court before addressing the defendant about a matter of interpretation.
  5. Interpret all verbal exchanges in the courtroom fully and accurately in the simultaneous mode.
  6. Make certain the interpreter oath is administered on the record before beginning to interpret. If an oath is required for interpreting between counsel and client, it should be administered at the earliest opportunity in order to ensure that the interpreter has been sworn to participate in confidential colloquies.
  7. Correct any error made on the witness stand immediately and on the record.
  8. If possible, ascertain whether interpreting will be needed for defendant and witness(es), and what the local court rules are in situations where only one interpreter is present in court.
  9. If the defendant does not want a simultaneous interpretation, this must be stated on the record. Waiver of the right to interpreted proceedings must be voluntary and so reported in open court and for the record.
  10. Use common sense. As interpreters we must often make decisions in situations for which no precedents may be known. Past experience and a moment of rational reflection will often point to a wise decision.
Finally, the possibility of appealable issues is one more incentive for interpreters to take advantage of all opportunities to improve skills and and remain current in the profession.

The author, a federally certified Spanish interpreter, is a professor and director of the Bilingual Legal Interpreting Graduate Program at the University of Charleston. A version of this paper was read at NAJIT’s Annual Conference in May, 2000.