The Administration of Justice in a Multilingual Society-Open to Interpretation or Lost in Translation?
Kahaner, Steven M., Judicature
The proper use of interpreters can help protect the rights of persons with limited English proficiency and facilitate the fair and efficient administration of justice.
The Court: You got anybody here that understands English better than you ?
Unknown Person: I do, sir.
The Court: Well, why doni you just come up here. Are you charged with something too or are you his friend ?
Unknown Person: (Inaudible.)
The Court: WeU, you can come on up here. Sounds to me like he better enter a 'not guilty ' plea, seeing as he can go to jail big time.
Unknown Person: He said he's guilty.1
The number of persons in the United States over the age of five who speak English less than very well soared from 14 million in 199O2 to 24.5 million in 2007,' a whopping 175 percent increase. Although Spanish is the non-English language spoken most frequently at home, there are more than 300 single languages or "language families" used in the United States.4 These statistics point to an ever-increasing challenge confronting state and federal courts charged with providing access to justice for all - including individuals whose primary language is not English and who have a limited ability to read, speak, write, or understand English (often referred to as "limited English proficient" or "LEP" individuals). In the federal courts alone, interpreted events (defined as one interpreter, one case number, one date) have been increasing steadily over the past decade, from approximately 100,000 in 1996, to 232,457 in 113 different languages in the 12 months ending September 30, 2007.
Given that language and cultural barriers may prevent criminal defendants from effectively participating in their trials, result in misinterpretation of witness statements made to triers of fact during court proceedings, deter minority litigants from the civil justice system as a forum for redress of grievances, and exclude large sectors of the population from jury pools,5 the lack of sufficient numbers of qualified interpreters in the courtroom poses a significant threat to the fair, impartial, and efficient administration of justice.6 Identifying, training and supervising reliable interpreters in a wide variety of languages also presents a significant management issue for the courts.
The proper use of interpreters can help protect the rights of LEP parties and facilitate the fair and efficient administration of justice. Only through competent interpretation can an LEP party understand the statements of the judge, opposing counsel, and the party's own counsel, as well as the testimony of witnesses, and assist in his or her own defense. Interpretation also enables judges, juries, and counsel to understand the testimony of defendants, witnesses, and other parties. Furthermore, interpreters make it possible for the court reporter to produce an accurate English-language record of court proceedings.
Right to an interpreter
The right to an interpreter, although not specifically guaranteed under the U.S. Constitution, has been established through case law interpreting the Sixth Amendment right of a defendant to confront adverse wi messes and participate in his own defense,7 including the right to effective assistance of counsel, as well as through the fundamental fairness required by the Fifth Amendment's due process clause, as applied to the states through the Fourteenth Amendment. Certain state constitutions (e.g., California and New Mexico) also recognize the right to an interpreter for LEP defendants in criminal cases, and state courts have recognized a variety of federal constitutional sources of the right to an interpreter.
The Court Interpreters Act, 28 U.S.CA. §1827 (1978), requires federal courts to appoint an interpreter in criminal and civil actions commenced by the federal government in U.S. district courts, and applies to both pretrial and grand jury proceedings. Other mandates for interpreters are included in Justice Department regulations implementing Title VI of the Civil Rights Act of 1964, as well as Executive Order 13166 (ordering all federal departments and agencies to develop policy guidelines to improve access by LEP persons to federally funded services). …