By Kristin Eriksson-Embree
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California's diversity is unparalleled in the U.S. The polyglot of languages in this state presents unique challenges to lawyers and bench officers. Knowing the basic rules regarding the proper utilization of interpreters is essential to both successful practice and effectively presiding over cases.
The objective of this article and self-study test is to familiarize readers with the basic rules and cases that govern the use of spoken language interpreters in California courts. Readers will learn about the various provisions of law that govern use of interpreters, interpreters in criminal and civil cases, and the oath taken by interpreters.
Interpreters in California must be provided in all criminal cases. Article 1, Section 14 of the state Constitution provides that "[a] person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings." By its terms, Section 14 applies only to criminal proceedings. There is no similar provision dealing with civil matters.
Although case law has primarily analyzed a defendant's right to an interpreter in terms of this constitutional provision, the right to an interpreter may also affect the defendant's rights to due process, to confrontation, to assistance of counsel, and to be present at trial. People v. Rodriguez, 42 Cal. 3d 1005 (1986).
Numerous statutory provisions govern the appointment and use of interpreters. For example, Evidence Code Section 752 requires that a sworn interpreter be appointed when a witness is incapable of understanding English or is incapable of expressing himself or herself in English so as to be understood directly by counsel, court and jury. Section 753 requires that a sworn translator be appointed when the written characters in a writing offered in evidence are incapable of being understood directly.
Evidence Code Section 754 provides that an interpreter must be provided for a deaf or hearing-impaired person. This provision applies both to criminal and civil matters, including small claims actions, but an interpreter need not be provided if the person is able to participate in the proceedings through use of a hearing aide or other device. Evid. Code, Section 754(a) and (b). Other civil proceedings where an interpreter must be provided include specified actions in the Family Code involving protective orders or parental rights, Evid. Code, Section 755(a), and during medical examinations requested by an insurer or by a defendant for the purpose of determining damages, Evid. Code, Section 755.5.
Interpreters play three different, but essential roles in criminal proceedings:
Defense interpreters - enable the non-English speaking defendant and his English-speaking attorney to communicate;
Proceedings interpreters - enable the non-English speaking defendant to understand communications between the attorneys, the witnesses and the judge; and
Witness interpreters - enable the questioning of non-English speaking witnesses. See People v. Aguilar, 35 Cal. 3d 785 (1984).
In criminal cases, a defendant's interpreter may not also serve as an interpreter for a non-English speaking witness. People v. Aguilar, 35 Cal. 3d at 791. This is true even when the interpreter is borrowed for a defense witness rather than a prosecution witness. In re Dung T., 160 Cal. App. 3d 697 (1984). In cases involving multiple defendants, each non-English speaking codefendant is entitled to an individual defense interpreter throughout the proceedings. People v. Rioz, 161 Cal. App. 3d 905 (1984). A defendant is also denied his right to an interpreter when his attorney acts as the interpreter on his behalf. People v. Chavez, 124 Cal. App. 3d 215 (1981).
Of course, a defendant may waive the right to have his own, nonattorney interpreter - as well as the right to the use of an interpreter altogether - so long as the waiver is made personally by the defendant on the record. People v. Aguilar, 35 Cal. 3d at 794. Nonetheless, the requirement that a waiver of the right to an interpreter must be personally and voluntarily made by the defendant applies only to proceedings interpreters, which are guaranteed by article 1, Section 14 of the state Constitution. No personal waiver is needed for the use of a witness interpreter. People v. Romero, 44 Cal. 4th 386 (2008).
The question of the necessity of an interpreter is a matter over which trial courts have broad discretion. People v. Annett, 251 Cal. App. 2d 858 (1967). Standard of Judicial Administration 2.10(b) states that the court should conduct an examination on the record if a party or counsel requests such an examination, or it appears to the court that the party or witness may not understand and speak English well enough to participate fully in the proceedings.
A criminal defendant has a right to have the court determine whether a person is qualified to serve as an interpreter, and the competence of the interpreter is ordinarily for the trial court to determine. People v. Mendes, 35 Cal. 2d 537 (1950). To help assure that a qualified interpreter is appointed, courts routinely refer to a list of certified interpreters which is compiled pursuant to Government Code Sections 68561-68562. Interpreters on this list must have successfully demonstrated both written and oral proficiency in an examination conducted by an approved agency.
A practical problem arises when there is an insufficient number of listed certified interpreters to handle cases. Government Code Section 68561(a) indicates that trial courts should use interpreters from the list unless good cause exists to appoint an uncertified interpreter. The unavailability of interpreters who are on the list may constitute good cause for the use of a noncertified interpreter. See People v. Roberts, 162 Cal. App. 3d 350 (1984); People v. Estrada, 176 Cal. App. 3d 410 (1986).
An interpreter has the duty to render a true interpretation of the questions posed and the answers given. People v. Shaw, 35 Cal. 3d 535 (1984); Evid. Code, Section 751. Accuracy is required to protect the integrity of the proceedings as well as the defendant's rights. People v. Aguilar, 35 Cal. 3d at 785. A trial court may commit prejudicial error by denying the defendant an opportunity to impeach the accuracy of the interpretation of a witness' testimony. People v. Johnson, 46 Cal. App. 3d 701 (1975).
A criminal defendant only has a constitutional right to an interpreter "throughout the proceedings." Cal. Const., art. 1, Section 14. This means that there is no right to an interpreter during an interview by a probation officer who is preparing a pre-sentencing report, because the preparation of the report is not a judicial proceeding. People v. Gutierrez, 177 Cal. App. 3d 92 (1986).
In Jara v. Municipal Court, 21 Cal. 3d 181 (1978), the state Supreme Court held that a non-English speaking indigent civil litigant does not have a right to a court-appointed interpreter as a matter of equal protection. When certified interpreters are requested and available, their fees must be paid by the litigants as costs in a proportion determined by the court. Gov. Code, Sections 26806(c), 68092. The use of volunteer interpreters was upheld in small claims cases in Gardiana v. Small Claims Court, 59 Cal. App. 3d 412 (1978).
Code of Civil Procedure Section 116.550 also deals with interpreters in small claims actions. It authorizes the use of volunteer interpreters and requires each small claims court to make a reasonable effort to maintain and make available a list of interpreters who are able and willing to assist litigants for either no fee or a reasonable fee. However, failure to maintain such a list does not invalidate any proceedings before the court.
Furthermore, subdivision (d) states that if a competent interpreter is not available in a small claims action, at the first hearing of the case the court shall postpone the matter one time to allow the party an opportunity to obtain another individual to assist that party. Any additional continuances shall be at the discretion of the court.
Evidence Code Section 751 requires the administration of a precisely worded oath to any person who acts as an interpreter. Failure to administer the oath violates the defendant's constitutional right to an interpreter. People v. Menchaca, 146 Cal. App. 3d 1019 (1983).
Nonetheless, failure to administer the oath is not per se grounds for reversal. For example, In re Bryon S., 176 Cal. App. 3d 822 (1986), held that the trial court's failure to immediately swear in an interpreter for a deaf juvenile was not a reversible error because the interpreter was sworn in after the court concluded its questions about her qualifications, and there was no material effect on the proceedings. Also, when the interpreter was sworn during proceedings on other matters related to the defendant, the failure to swear him in during the subsequent proceeding did not require reversal. People v. Mora, 153 Cal. App. 3d 18 (1984).
Moreover, when a defendant does not object to the court's failure to administer the oath, the defendant is precluded from raising the issue on appeal. People v. Martinez, 171 Cal. App. 3d 727 (1985). Even when the issue is preserved, in order to obtain a reversal, the defendant must show prejudice or an informed speculation that he or she was denied effective representation by the court's failure to administer the oath to an interpreter. People v. Torres, 164 Cal. App. 3d 266 (1985).
Finally, Evidence Code Section 751(d) allows a certified interpreter or translator regularly employed by the court to file the oath with the clerk. The filed oath serves for all subsequent court proceedings until the appointment is revoked by the court.
Kristin Eriksson-Embree is an attorney in the Los Angeles County Superior Court Planning and Research Unit.