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"No es posible. No es posible."1 shouted Santiago Ventura Morales as the jury announced its guilty verdict in his murder trial. Ventura, an eighteen year old migrant from a remote village located in the mountains of Southern Mexico, could not believe the verdict.2
The Oregon trial court had dutifully appointed a Spanish speaking interpreter for the proceedings, but Ventura only understood very simple Spanish. His native language, Mixtec,
is an indigenous language. Witnesses, who likewise only spoke Mixtec, were confused and bewildered by questions posed to them in Spanish.
The court interpreter could neither faithfully interpret the proceedings into Mixtec, nor interpret the testimony of Mixtec speaking witnesses into English. Repeated
interpreter complaints on the record regarding linguistic limitations were unheeded or unnoticed by the court.
The Ventura case had significant national media exposure and raised this country's consciousness regarding fundamental fairness issues and equal access to justice for
linguistic minorities.3 The Oregon Court of Appeals affirmed Ventura without written opinion. It was not until two years later that the case was ordered dismissed by the trial judge.4
Non-English speaking persons appear in Utah's courts with increasing frequency. Utah has reportedly had no such outrageous cases comparable to Ventura where linguistic
minorities have been denied justice, but it is fair to say that less consequential, but still very troubling, problems have occurred and continue to occur in Utah's courts.
Introduction
No man shall be deprived of "life, liberty, or property without due process of law," establishes the important concept of individual fairness
in the American judicial system. Increased immigration and demographic changes in language use occurring in Utah and throughout the nation, challenge fundamental guarantees of
individual fairness. These guarantees include the rights of confrontation and due process set forth in the 5th and 14th Amendments. To provide individual rights, courts are
increasingly compelled to use language interpreters for defendants who do not speak or understand English. Providing court interpreters thus becomes an integral part of
"justice for all" in federal and state courts.5
Language interpreters overcome the barriers and cultural misunderstandings that can render criminal defendants virtually absent from their own proceedings; they also eliminate
the misinterpretation of witness statements made to police or triers of fact during these court proceedings. This article focuses on the criminal justice system, but its
practical suggestions apply equally to civil, probate, and administrative proceedings as well. Interpreters are extremely beneficial, perhaps necessary, in civil matters that
involve complex issues such as termination of parental rights, adoptions, and the terms and conditions of divorce settlements.
Some state constitutions guarantee the right to an interpreter despite the absence of such an explicit provision in the U.S. Constitution.6 The Court Interpreters Act of 1978 requires federal courts to appoint an interpreter in both criminal and civil actions commenced by the federal government in a United States District Court. 28 U.S.C. ¤ 1827(d) (1988).7 Federal district courts recorded 165,151 interpreted events in 1999, 94% of which were Spanish.8 Moreover, courts have recognized that when defendants cannot effectively communicate with their counsel or understand the charges against them, they are entitled to an interpreter to take full advantage of their constitutional rights and to ensure due process.9
Utah's Need for Court Interpreters
It is projected that from 1995 through 2025, the number of Hispanics in Utah will grow from 110,000 to an estimated 265,000 - an
increase of 120%.
In that same time period, the Asian and Pacific Islander population in Utah will rise from 46,000 to 113,000, increasing by 123%.10
Without making the unwarranted assumption that an increased population of minority groups leads to a higher number of court cases involving minorities, these expanded
populations will place more pressure on the justice system to effectively offer equal access to non-English speakers. During the twelve months prior to July 1, 2000, the State
of Utah paid for close to 16,000 hours, or 2,000 days, of interpreter time.
What linguistic groups have required interpreters in Utah's courts?
Interpreter coordinators statewide have estimated that approximately 85% of our interpreter needs are for Spanish speaking individuals.
What is interesting, and somewhat surprising, is the scope of the other languages that comprise the remaining 5% of requests between June 1, 1999 and May 31, 2000. They are, in
descending order: Russian, Cambodian, Laotian, Korean, Samoan, Somalian, Persian, Punjabi, Czech, Japanese, Tigrena, Cantonese, Portuguese, Navajo, Hindi, Tagalog, Filipino,
Mongolian, Nepalese, Lithuanian, and Mandarin Chinese.
Legal Right to an Interpreter
Rule 3-306 of the Code of Judicial Administration, together with Appendix H of the Professional Rules of Responsibility, outline the
duties of the court interpreter. The interpreter does not independently read rights, give legal advice, or conduct anything off the record unless authorized to do so by the
court. Note also that interpreters must not correct erroneous facts posed in the questions and shall not correct the testimony given by the party or witness even if clearly in
error. Simply stated, interpreters only interpret what they hear. They interpret the statements made in court for the defendant, and they interpret the defendant's (and other
non-English speaker's) statements for the court. The interpreter also facilitates communication between the defendant and defendant's counsel.
The trial judge determines whether the defendant needs an interpreter. Section 77-1-6 of the Utah Code outlines the rights of criminal defendants which include the right to an
interpreter when the defendant does not understand witnesses and officers of the court.11 If the witnesses are not understandable, comprehensible, or intelligible, and the absence of an interpreter deprived the defendant of some basic right, then the trial court may have abused its discretion.12 The Utah Court of Appeals applied the "abuse of discretion" standard when it addressed the defendant's right to a court interpreter in State v. Fung. In that case, the trial court appointed an interpreter on behalf of the defendant and the defendant objected because the interpreter lacked courtroom experience. After questioning the interpreter in chambers, the trial judge found that despite unfamiliarity with some legal terms "[the interpreter] understood the court system adequately to perform the required duties." The Utah Court of Appeals held that "the burden rests with the defendant to show that he was somehow denied a fair trial by the interpreter's deficiencies."13 California courts have held that the reviewing court must use a "harmless beyond reasonable doubt" standard to determine whether the trial court erred in the selection of an interpreter.14 Ultimately, the trial judge will decide whether to choose an interpreter and whether an individual is capable of performing the interpreter's duties.
Courts have shown particular concern for the defendant's right to communicate with counsel. For example, in People v. Mata Aguilar, the California Supreme Court determined that
a defendant's right was violated when the court borrowed the defendant's interpreter for the jury and prosecution witnesses. The court reasoned that the defendant was denied a
fair trial because he could not communicate with his attorney or understand statements from the bench while the interpreter helped the jury and witnesses.15 In light of this, court interpreters have become essential instruments in due process and the right of confrontation.
Sometimes judges may be tempted to have counsel try to play attorney and interpreter for the defendant. With the pressure to save tax resources, this is understandable;
however, given the importance of the attorney-client relationship, many problems arise when counsel acts as the interpreter. To serve as effective counsel for the defendant,
the attorney must conduct pre-trial matters and voir dire, make opening statements, timely objections and motions, consult with the client, formulate cross examination
questions during the trial, call witnesses, and make closing arguments.16 While performing these duties, counsel cannot simultaneously provide a verbatim interpretation of the entire court proceeding. This would require strenuous performance of constant concentration. Counsel cannot effectively meet the demands of both advocate and interpreter.
In addition to the physical and mental strains of advocating and interpreting, a bilingual lawyer could face unique ethical dilemmas when interpreting for the defendant. When
the accused makes incriminating statements in court, is counsel obligated as an officer of the court to interpret those statements? Or, can counsel assert, though improperly,
an attorney-client privilege and maintain confidentiality? Also, the client could enter a plea based on advice from counsel and later become disgruntled and attempt to set
aside the plea. Courts would have substantial difficulty in determining whether the client made a plea voluntarily, knowingly, and with understanding. Moreover, the client
might challenge the interpretation and the attorney would become a witness in the proceedings.17 Clearly, bilingual counsel should not perform interpretation for the record.
Utah's Response18Training interpreters. Utah's Administrative Office of the Courts (AOC) has actively pursued beneficial policies for interpreters. Over the last two
years, the AOC's Utah Court Interpreter Advisory Panel has proposed several policies for interpreters, including an improved interpreter payment plan, a standardized procedure
for court form translation, and a disciplinary policy for court interpreters. The Utah Judicial Council has adopted all of these policies.
To ensure interpreter competence, Utah offers a variety of continuing education seminars which give interpreters the opportunity to improve their skills. Since 1998, six
additional interpreters have received state certification, and two interpreters have certified at the federal level. Workshops have also been provided to offer
non-language-specific training to assist interpreters in their responsibilities.
Utah's Court Interpreter Rule (CJA3-306) has recently been amended to provide for three classes of interpreters: certified, approved and conditionally approved. The AOC will
have additional responsibilities to prepare a course that "approved" interpreters must pass in order to work in the courts. This rule change is a welcome enhancement
to the training procedure.
Offering additional interpretation.
Not all interpretation needs occur inside the state's courtrooms. The Utah Judicial Council has approved a second language stipend policy on a one year pilot basis for courthouse employees who demonstrate proficiency in a second language and who use their second language on a regular basis. This is defined as at least five interactions per month. This "second-language" stipend program was implemented on July 1, 2000. Management and supervisory employees are not eligible for this monthly stipend; it is intended for up to 75 employees statewide, who speak a second language and whose jobs bring them into regular contact with the public. This innovative program should prove invaluable in a "front counter" setting where non-English speaking patrons have their first exposure to the Utah court system. Although Spanish is the presumed second language, other languages have been authorized as needed. It is vital to note that these employees will not substitute for certified and approved court interpreters who perform interpreting services in the courtroom. Finally, this program has been implemented state-wide with each judicial district being allotted stipends based on a prorated formula.
Pooling resources.
In 1995, Utah joined the Consortium for State Court Interpreter Certification, an organization coordinating the efforts of twentyfive state court systems to provide better court services for linguistic minority populations. Minnesota, New Jersey, Oregon, and Washington initially founded the Consortium, in July 1995, as a way to provide for and regulate exchange of existing court interpreter proficiency tests and to develop new tests. Since then, twentyone other states have become members.19 California, which currently operates the oldest and largest court interpreter certification program in the nation, joined the Consortium in 2000, adding its expertise to the pool. Utah benefits from access to the Consortium's training models, linguistically validated tests, and expert test raters. The Consortium also shares information about certification requirements; ethical issues; payment and travel policies; the recruitment, assignment, hiring, and discipline of interpreters; telephonic interpreting projects; and interpreter web pages.
Utah, through a State Justice Institute grant proposal, hopes to participate in a pilot program designed to test the feasibility of an interstate, telephonic interpreter
service. Spearheaded by New Mexico, and coordinated with Utah, Arizona, and Colorado, the "Four Corners" program will attempt to augment the available interpreter
database for lesser used languages. Leveraging this resource will benefit court interpreting in three ways. It will: (1) increase the pool of certified and approved
interpreters; (2) diminish the use of unqualified interpreters; and (3) recruit highly skilled and competent individuals to consider interpreting as a viable career. Following
procedures established by a permanent federal court program, each state will provide telephone court interpreting in both an urban and a rural area, using state of the art
equipment that allows for both general courtroom interpreting and private conferencing between counsel and the defendant.
Utilizing technology.
To better serve English and Spanish speaking individuals in the court system, the AOC has implemented the Interactive Voice Response (IVR) system in the Second and Third Judicial Districts. This service allows court users to access various types of court information through the use of a touchtone telephone. The telephone system's Spanish option is now available in Salt Lake City and in Ogden. Like the English option, the Spanish recording is voice responsive, but it is professionally recorded by a certified court interpreter. A Spanish speaking caller accessing the IVR system can choose from four available services: time, place, and details of a court appearance; current balance on a court account; status of a pending judgment; and general information, such as court addresses and hours. All of this information is available seven days a week, 24 hours a day. In April 2000, the AOC intends to next implement the IVR system in the Fourth District Court in Provo.
Pro se litigants who have Internet access can download court documents using the Online Court Assistance Program (OCAP). OCAP, which was formally launched in November 2000,
provides instructions both in Spanish and English. Before OCAP, the courts provided a kiosk system that was accessed 90% of the time by English speakers and 10% of the time by
Spanish speakers. OCAP runs on an open ended computer software application that will allow for new options over time. This will include additional filings beyond the currently
offered landlord/tenant and uncontested divorce filings.
Providing interpreters for the Olympic Courts.
The Utah Judicial Council has endorsed the concept of "Olympic Courts" which will operate during the 2002 Olympics. The Olympic Courts are still in the developmental stages, and most of the details will be worked out by local committees established in each venue site/county: Morgan, Weber, Salt Lake, Summit, Wasatch, and Utah. Salt Lake County will have two designated Olympic Courts; one at the Scott Matheson Courthouse and the other in West Valley City. Davis County, which is not an Olympic venue site, will also have an Olympic Court.
Only Class B and lower misdemeanors will be handled by the Olympic Courts. (Felony charges will be referred to the normal judiciary process.) For the most part, the Olympic
Courts will process alcohol-related offenses, disturbing the peace infractions, shoplifting, and traffic violations anticipated during the Olympics. These courts are expected
to be in session from 8 a.m. until 10 p.m. or midnight. In some instances, more than one judge may be assigned to a particular county's court to handle the caseload. The State
Judiciary will operate in a limited, skeleton mode for these occurrences and for the juvenile hearings and arraignments that, by statute, must be heard in a specified period
of time. The regular courts will be asked not to hold criminal trials or other activities that would pull police officers away from Olympic duties or cause transportation
problems.
Interpreter services will obviously be needed to serve potential victims or defendants from 80 nations participating in the Olympics. First, all available certified court
interpreters will be on call during the entire Olympics. They will be coordinated among the eight courts, allowing for travel time and other logistic concerns. Second, the
Olympic Committee will develop a list of designated interpreters from each of the non-English speaking nations to be on call throughout the Olympics as interpreters for fellow
countrymen. Lastly, a national telephonic interpreting service will be available to Olympic Courts unable to locate an interpreter through the former two avenues.
Initiative A, English as the Official Language of Utah and the Courts
How does the passage of Initiative A in November of 2000, affect the operation of the courts,
particularly with respect to equal access to non-English speaking people? Since this is a frequently asked question, Brent Johnson, general counsel for the Administrative
Office of the Courts, recently circulated a memorandum on the subject to all court personnel, stating the official policy of the Utah Judiciary. Consider:
The short answer
is that the law cannot and does not affect the current operations of the court and does not have any foreseeable impact on future operations of the court . . .
Relevant
provisions of the new statute state that "languages other than English may be used when required by the United States Constitution, the Utah State Constitution, federal
law, or federal regulation: . . . [and] in judicial proceedings, when necessary to ensure that justice is served." These two exceptions in the law hit at the core of the
judiciary's mission. We have a responsibility to uphold and fulfill the state and federal constitutions and to provide equal access to justice for all persons protected by
those documents. Throughout the years, the courts have made repeated and consistent decisions to provide services in languages other than English to protect the due process
and constitutional rights of litigants. In the criminal setting, non-English language services have been provided to litigants to ensure the right to a fair trial and to
ensure that a litigant understands charges that may be pending against him or her. In the civil setting, we provide services to ensure that non-English speaking litigants have
the right to prosecute or defend their actions in a manner similar to English speaking litigants. We have also made decisions which recognize that the obligation of equal
justice begins when a litigant walks into the courthouse. If necessary, for instance, a non-English speaking person is entitled to interpretation and signage which directs the
person to the appropriate areas of the courthouse.
We are pleased that the English initiative has at least recognized the importance of providing services in the judicial branch. The law provides us with the discretion to
determine what is necessary to achieve equal justice. We have been making these decisions throughout the years and these decisions will remain unaffected. We will also
continue to make decisions that address equal justice for all people.
There is a prevailing sentiment that the passage of Initiative A may have a chilling effect on non-English speaking people curbing their use of the civil justice system as a
forum for redress of grievances. That will be impossible to measure, except through anecdotal information.
Continuing Challenges
The greatest challenge ahead for court interpretation in Utah will be to convey the importance of professional court interpretation to all
people involved in the judicial process.20 This general education needs to occur within the court system (judges and court employees), with agencies that interact with the court system (prosecutors, defense attorneys, law enforcement officers, jails, probation departments, etc.), with attorneys in general, and with members of the public. Attorneys, court employees, and other personnel enhance all aspects of court proceedings when they understand the appropriate role of court interpreters and coordinate with each other for needed interpretation. Other ongoing challenges include training and certifying more interpreters, expanding current training and certification to languages other than Spanish, providing adequate interpreter resources to all areas of the state, including the rural areas, and enhancing the career of court interpreting to attract a greater number of skilled individuals to the profession.
Lastly, from time to time, there are reports that certain courts or judges simply ignore the provisions of Rule 3-306 of the Code of Judicial Administration by failing to
utilize a certified court interpreter when required to do so. Other abuses surface less frequently. The AOC must continue to be vigilant in monitoring compliance with
established standards, acknowledging that each breach may result in a miscarriage of justice. Implementation of the Rule has been costly, but fortunately the Utah Judiciary
has not subordinated justice to "bottom line budget" considerations.
Conclusion
"The most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities."
-Lord Acton (John E. E. Dalberg Acton)
English historian, statesman (1834-1902)
"If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice."
-Hon. Learned Hand, 1951
Utah Trial Journal - Spring 1999
"Our courts are the great levelers."
Roughly paraphrased from the movie,
"To Kill a Mockingbird"
"The mission of the Utah Judiciary is to provide the people an open, fair, efficient, and independent system for the advancement of justice under the law."
Official Mission Statement
of the Utah State Judiciary
1 "It is not possible. It is not possible," in Spanish.
2 This case is reported and discussed by Judge Paul J. DeMuniz in the introduction of
Immigrants in Courts, University of Washington Press, 1999, pages 3-5. It was heard in the Circuit Court, Clackamas County, State of Oregon. It was argued or submitted on
briefs on August 30, 1988 and was affirmed without opinion. (State of Oregon, Respondent v. Santiago Ventura Morales, Appellant. Nos. 86-630, CA A42459, Court of Appeals of
Oregon, 1988 Ore. App LEXIS 1627.) Because it was affirmed without opinion, it was difficult for the authors to follow the procedural history of the case.
3 J udge Paul J.
DeMuniz reports media attention as follows: a comprehensive article about the case by Peter Carlin, "What Becomes of the Resurrected?" Los Angeles Times Magazine,
March 8, 1992, p. 22. Because Ventura appeared to have been treated unfairly by the judicial system, the reinvestigation of Ventura's case eventually became the subject of
intense media attention. Articles about the case appeared frequently in the Oregonian, Oregon's major newspaper. Local television news programs mentioned the case repeatedly.
One local station did an hour-long feature on the case, even sending reporters to Ventura's home village in the remote mountains of southern Mexico. NBC sent a news crew to
interview Ventura in prison and devoted five minutes to the story on the national evening news. Not to be outdone, Oprah Winfrey devoted most of a show to interviewing three
of the Ventura trial jurors, while Ventura appeared via satellite from prison.
4 Telephonic contact with the Clerk of the Circuit Court, Clackamas County, confirmed
that the trial judge signed an order of dismissal in the case on April 11, 1991.
5 Court interpretation ranked first on the list in The Top Ten Issues Facing Courts
in 1996 and What You Can Do About Them, by James Thomas, Vice President of Court Services of the National Center of State Courts, and Frank Gavin, Director of the Institute
for Court Management at the National Center for State Courts, Future View (Supreme Court of Virginia/ Office of the Executive Secretary), Spring 1997, at 1. The article
states: "[p]roviding court interpreter programs has become, and will remain for the foreseeable future, a difficult but obligatory task for court managers."
6 See, e.g., Cal. Const. art. I, ¤ 14 ("A person unable to understand English who is charged with a crime has a right to an interpreter throughout the
proceedings"). See also Haw. Const. art. II, ¤ 1 ("the right of everyone to services of an interpreter" in all civil cases) and ¤ 2 ("the right of the
accused to confront opposing witnesses in a meaningful manner" in criminal prosecutions).
7 Amendments made to the Act in 1988 now extend this right to pre-trial
and grand jury stages of the case. 28 U.S.C. ¤ 1827(j) (1988).
8 Statistics reported in "Activities of the Administrative Office of the U.S. Courts, 1999 Annual Report of the Director."
9 United States ex. rel.
Negron v. New York, 434 F.2d 386 (2d Cir. 1970) (holding that every criminal defendant should have "sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding").
10 United States Census Bureau <http://www.census.gov/population/projections/state/stpjrace.txt>
11 The Notes to Decision in the Utah Code Ann. ¤ 77-1-6 outline the right to an interpreter in Utah:
Accused is not confronted by a witness whose language he cannot
understand. In such a case an interpreter should be appointed. State v. Vasquez, 101 Utah 444, 121 P.2d 903, 140 A.L.R. 755 (1942), reviewed in State v. Masato Karumai, 101
Utah 592, 126 P.2d 1047 (1942), in which it was held that court of its own motion might appoint an interpreter for defendant at the state's expense. Even though trial court
erred in not furnishing an interpreter, the case would not be reversed unless it was shown that defendant was prejudiced thereby in his defense. Furthermore, failure to make
timely objection waived the right to be confronted by the adverse witnesses. State v. Masato Karumai, 101 Utah 592, 126 P.2d 1047 (1942).
12
See e.g. People v. Warren, 504 N.W.2d 907 (Mich. Ct. App. 1993); United States v. Yee Soon Shin, 953 F.2d 559 (9th cir. 1992); United States v. Rosa, 946 F.2d 505 (7th Cir. 1991); Valladares v. United States, 871 F.2d 1564 (11th Cir. 1989).
13 State v. Fung, 907 P.2d 1192 (Utah Ct. App. 1995).
14 People v. Rodriguez, 728 P.2d 202 (Cal. 1986); People v. Chavez, 283 Cal. Rptr. 71 (Ct. App. 1991).
15
See People v. Mata Aguilar, 677 P.2d 1198, 1200 (Cal. 1984) (because the trial court borrowed defendant's interpreter, the defendant lost his ability to confront witnesses and communicate with counsel); see also People v. Nieblas, 207 Cal Rptr. 695 (Ct. App. 19845) (Other courts have determined that if the defendant had an opportunity to communicate with counsel by interrupting the proceedings or by asking for a recess, then no due process rights were violated. In State v. Gonzales-Morales, 979 P.2d 826 (Wash. 1999) the court outlined a balancing test for courts to determine whether the right to a fair trial has been compromised. It states:
In United States v. Bennett, 848 F.2d 1134 (11th Cir. 1988) multiple defendants contended the appointment of one interpreter was not sufficient to allow individual
communication with counsel. The court emphasized that the trial court had provided "ample opportunity" to the defendants by offering to "recess the proceedings
at any time they needed to consult their attorneys through the interpreter." The use of the interpreter under these circumstances was a proper balance of appellant's
"Ôconstitutional rights to confront and due process against the public's interest in the economical administration of criminal law.'" (quoting United States v.
Martinez, 616 F.2d 185, 188 (1980)).
16
Lynn W. Davis & William E. Hewitt, Lessons in Administering Justice: What Judges Need to Know about the Requirements, Role, and Professional Responsibilities of the Court Interpreter, 1 Harv. Latino L. Rev. 121, 137 (1994).
17
Id., For an instructive outline of the ethical dilemmas faced by bilingual attorneys see Bill Piatt, Attorney as Interpreter: A Return to Babble, 20 N. M. L. Rev. 1 (1990).
18 Special thanks to Holly Bullen, Dan Becker, Myron March, and Kim Allard of the Utah Administrative Office of the Courts for providing the information for this section.
19
Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois (Cook County), Maryland, Michigan, Missouri, Nebraska, New Mexico, North Carolina, Tennessee, Utah, Virginia, and Wisconsin.
20
Mike Martinez, an attorney in Utah, summarized three major issues facing Utah courts with regard to court interpretation: 1) court certified interpreters are not state certified, 2) there is an inadequate supply of interpreters, and 3) interpreters and judges do not always understand the proper role of the interpreter. In addition to Mr. Martinez's comments, Gus Chin, a prosecutor in Utah's 3rd District, and Patrida Sinbad, added their insight to help the authors identify these issues.
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