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FPP § 6056 (R 604)
27 Fed. Prac. & Proc. Evid. s 6056 (R 604) (WRIGHT & MILLER TREATISE MAIN VOLUME)
Federal Practice and Procedure
Federal Rules of Evidence
Charles Alan Wright
Victor James Gold
Copyright © 1990 West Publishing Co.
Chapter 7. Witnesses
Rule 604. Interpreters
s 6056. PARTY AND PROCEEDINGS INTERPRETERS
There are three different contexts in which courtroom interpreters function. First, an interpreter may translate questions posed to and answers provided by a witness during examination by counsel. An interpreter performing this function is known as a "witness interpreter." Next, an interpreter may translate communications between counsel and a party during trial. An interpreter providing this service is known as a "party interpreter" or, since such services are most commonly needed by the defendant in a criminal prosecution, a "defense interpreter." Finally, an interpreter may translate for a party statements made by the judge, opposing counsel or others during the proceedings. These interpreters are known as "proceedings interpreters." [FN1]
Rule 604 deals with witness interpreters. [FN2] Thus, the immediately preceding sections focus only on issues pertaining to such interpreters. However, cases involving witness interpreters often also pose related issues concerning party and proceeding interpreters. Because of the close connections between witness interpreter issues and party or proceedings interpreter issues, it is important here to identify and at least briefly comment on the latter even though they do not technically arise under Rule 604.
Some of the issues pertaining to party or proceedings interpreters are similar to those already considered in connection with witness interpreters and are resolved on a similar basis. Like a witness interpreter, a party or proceedings interpreter is not appointed unless there is a need for one. [FN3] In the case of a witness interpreter, need is a function of the ability of the witness to communicate with the trier of fact. [FN4] In the case of the party or proceedings interpreter, need is a function of the ability of a party to communicate with his counsel and understand the statements of the judge, counsel, and others in the courtroom. [FN5] As in the case of the witness interpreter, the judge has wide discretion in evaluating the need to appoint a party or proceedings interpreter. [FN6] Qualifications of party or proceedings interpreters should also be evaluated on the same basis employed for witness interpreters; the interpreter should be fluent in both English and the other language or mode of communication employed by the party in need of interpretative assistance.
On the other hand, some issues are handled differently for party or proceedings interpreters. For example, unlike the witness interpreter, the party or proceedings interpreter need not be placed under oath. [FN7] Further, since the party or proceedings interpreter translates for a party rather than the trier of fact, there arises a new issue as to whether the party in need of such services hasthe burden of requesting an interpreter in order to preserve for appeal the question of whether an interpreter should have been appointed. Some courts have imposed such a burden, concluding that a party waives his rights to an interpreter if he fails to demand one. [FN8] Other courts impose on the judge the duty to advise a defendant in a criminal case of his right to request an interpreter. [FN9] The second approach should be followed where the defendant's communication problems have a bearing on the ability to make such a request. It would make little sense to conclude that a party who cannot understand the proceedings or communicate with counsel can waive rights he does not know about or cannot assert in an intelligible fashion. [FN10]
The policies compelling the appointment of the party or proceedings interpreter also differ in important ways from those at stake in connection with the appointment of the witness interpreter. Consideration of these policies is essential to determining many issues which arise in connection with a request to appoint a party or proceedings interpreter.
Without a witness interpreter the testimony of a witness who cannot otherwise communicate with the trier of fact would be lost. [FN11] The loss of such testimony could prevent the trier of fact from discovering the truth. Thus, the essential policy behind the appointment of a witness interpreter is to advance the goal of ascertaining the truth by making otherwise unintelligible testimony understandable to the trier of fact. [FN12] The policies advanced by the appointment of a party or proceedings interpreter are related, but not identical. If a party cannot effectively communicate with counsel or understand the proceedings, the efficacy of certain basic components of our system of justice may be questioned. For example, the legitimacy of the adversary process depends upon the validity of the assumption that the trier of fact will be presented with a relatively complete and accurate picture of the truth by hearing the various versions of that truth presented by the parties. [FN13] But if a party is unable to understand the proceedings, it is unlikely that he will be able to effectively present his story or respond to conflicting stories. Similarly, the efficacy of the advocacy process depends upon the validity of the assumption that the advocate will be able to assist the client in presenting his story and attacking the stories of other parties. [FN14] But if the client is unable to communicate with his lawyer, this assumption is unwarranted. [FN15]
Because the adversary and advocacy processes are so central to the operation of our justice system, many of the important procedural rights described in the Constitution are undermined by the inability of a party to communicate with counsel or understand the proceedings. [FN16] Thus, the refusal to appoint a party or proceedings interpreter in a criminal case where the defendant has demonstrated the need for such an interpreter may violate the rights to effective assistance of counsel, [FN17] presence at trial, [FN18] confrontation, [FN19] due process, [FN20] and equal protection. [FN21]
The issue of whether a court should appoint a party or proceedings interpreter might be more accurately stated this way; Should the court pay for a party or proceedings interpreter? After all, the communication problems that raise the constitutional issues mentioned in the preceding paragraph could be resolved by a competent interpreter hired by the party with those problems. Thus, it might be argued that such constitutional issues are raised only when a party lacks the financial means to hire an interpreter. Several cases suggest as much. [FN22] Further, it is clear that at least some of these constitutional issues are less strongly felt or even irrelevant in civil cases. In fact, all the federal cases raising constitutional issues in connection with the appointment of party or proceedings interpreters are criminal cases. [FN23] The limited authority on the subject suggests that the courts have no obligation to appoint and pay for party or proceedings interpreters in civil litigation. [FN24]
Notwithstanding these potential limits to constitutional requirements in this area, Congress has provided for court appointment of party or proceedings interpreters in certain civil and all federal criminal cases without regard to the party's financial ability to pay for an interpreter. Thus, the Court Interpreters Act provides:
The presiding judicial officer *** shall utilize the services of the most available certified interpreter *** in any criminal or civil action initiated by the United States in a United States district court *** if the presiding judicial officer determines *** that *** [a] party (including a defendant in a criminal case) *** (1) speaks only or primarily a language other than the English language; or (2) suffers from a hearing impairment *** so as to inhibit such party's comprehension of the proceedings or communication with counsel or the presiding judicial officer. [FN25]
The importance of appointing a party or proceedings interpreter is most clearly expressed in those cases where there is a need to translate both for a witness and a party. While there are few federal cases, [FN26] the many state cases considering this issue almost uniformly hold that separate interpreters must be appointed to perform these different roles. [FN27] The reasoning is simple; during the time an interpreter is translating questions and witness testimony, she cannot translate attorney-client communications or the proceedings. Of course, the interruption in party or proceeding translation might be brief and could be at least partially remedied after the testimony is completed. But the importance of the policies at stake are said to require uninterrupted service. [FN28] Similar thinking lies behind other state court decisions on two related points. Thus, several courts have held that a proceedings interpreter must be appointed even though defense counsel has the language ability to translate the proceedings for his client. [FN29] Other decisions conclude that separate party interpreters must be appointed where there is more than one defendant. [FN30] However, at least one state supreme court has held that the failure to appoint separate party interpreters does not require reversal if the defendants were not significantly prejudiced. [FN31]
[FN1]. Three contexts
See generally Chang & Araujo, Interpreters for the Defense: Due Process for the Non-English-Speaking Defendant, 1975, 63 Cal.L.Rev. 801, 802.
[FN2]. Witness interpreters
See s 6053 at notes 14 through 20.
U.S. v. Barrios, C.A.9th, 1972, 457 F.2d 680, 682 (failure of trial court to advise defendant of availability of interpreter was not error where defendant failed to request one and did not indicate a need for one).
[FN4]. Trier of fact
See s 6054 at note 10.
[FN5]. Party or proceedings interpreter
See, e.g., U.S. v. Carrion, C.A.1st, 1973, 488 F.2d 12, 14, certiorari denied 94 S.Ct. 1613, 416 U.S. 907, 40 L.Ed.2d 112 ("there is no right to an interpreter if the foreign-born defendant speaks fluent English and is 'completely aware of all the proceedings"').
Luna v. Black, C.A.8th, 1985, 772 F.2d 448, 451. See also State v. Neave, 1984, 344 N.W.2d 181, 183, 117 Wis. 359 ("the discretion *** is to determine the factual question of whether an interpreter is needed; a trial court does not have discretion to decide whether a defendant who needs an interpreter has a legal entitlement to one").
See s 6053 at notes 15 through 17.
[FN8]. Fails to demand
See, e.g., U.S. v. Barrios, C.A.9th, 1972, 457 F.2d 680, 682 (failure of court to advise defendant of availability of interpreter was not reversible error since defendant failed to request interpreter).
[FN9]. Duty to advise
See, e.g., U.S. v. Carrion, C.A.1st, 1973, 488 F.2d 12, 14-15, certiorari denied 94 S.Ct. 1613, 416 U.S. 907, 40 L.Ed.2d 112 (court should advise defendant of right to interpreter); U.S. ex rel. Negron v. New York, C.A.2d, 1970, 434 F.2d 386, 390-391 ("the least we can require is that a court, put on notice of a defendant's severe language difficulty, make unmistakably clear to him that he has a right to have a competent translator assist him, at state expense if need be, throughout his trial").
[FN10]. Little sense
See U.S. ex rel. Negron v. New York, C.A.2d, 1970, 434 F.2d 386, 390:
"Nor are we inclined to require that an indigent, poorly educated Puerto Rican thrown into a criminal trial as his initiation to our trial system, come to that trial with a comprehension that the nature of our adversarial processes is such that he is in peril of forfeiting even the rudiments of a fair proceeding unless he insists upon them. *** Negron *** may well not have had the slightest notion that he had any 'rights' or any 'privilege' to assert."
[FN11]. Testimony lost
See 3 Wigmore, Evidence, Chadbourn rev. 1976, s 811.
[FN12]. Policy See s 6052.
[FN13]. Adversary process
See generally Freedman, Judge Frankel's Search for Truth, 1975, 123 U.Pa.L.Rev. 1060, 1065 ("truth is a basic value and the adversary system is one of the most efficient and fair methods designed for finding it").
[FN14]. Advocacy process
U.S. ex rel. Negron v. New York, C.A.2d, 1970, 434 F.2d 386, 389:
"And it is equally imperative that every criminal defendant *** possess 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.' *** Otherwise, '[t]he adjudication loses its character as a reasoned interaction *** and becomes an invective against an insensible object."'
[FN15]. Assumption unwarranted
Some courts have expressed the interests at stake in moral terms. See, e.g., U.S. v. Carrion, C.A.1st, 1973, 488 F.2d 12, 14, certiorari denied 94 S.Ct. 1613, 416 U.S. 907, 40 L.Ed.2d 112 ("The right to an interpreter rests most fundamentally, however, on the notion that no defendant should face the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment"); U.S. ex rel. Negron v. New York, C.A.2d, 1970, 434 F.2d 386, 390 ("as a matter of simple humaneness, Negron deserved more than to sit in total incomprehension as the trial proceeded. Particularly 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 chooses to put in jeopardy").
[FN16]. Procedural rights
It should be clear that, if a party or proceedings interpreter is provided, there is no further constitutional obstacle to proceeding in a language which one of the parties does not understand. See Jackson v. Garcia, C.A.1st, 1981, 665 F.2d 395, 396 (defendant in criminal prosecution objected to conduct of proceedings in Spanish, the language customarily used in the courts of Puerto Rico; "That an accused is tried in a language unknown to himself does not, without more, deprive him of a fair trial provided a suitable interpreter is afforded."). In fact, there is some authority suggesting that no constitutional issue is raised even by the issue of interpreter appointment. See Fairbanks v. Cowan, C.A.6th, 1977, 551 F.2d 97, 99 ("[r]ulings on the appointment and qualifications of an interpreter do not reach constitutional proportions"); Soap v. Carter, C.A.10th, 1980, 632 F.2d 872, 874-875, certiorari denied 101 S.Ct. 2021, 451 U.S. 939, 68 L.Ed.2d 327 (same). However, it is important to note that these latter cases dealt only with objections to the interpreter selected by the court. These cases do not, thus, address the question of whether a constitutional issue is raised when the court refuses to appoint an interpreter when there is a need for one.
[FN17]. Assistance of counsel
See, e.g., U.S. ex rel. Negron v. New York, C.A.2d, 1970, 434 F.2d 386, 389; U.S. ex rel. Navarro v. Johnson, D.C.Penn.1973, 365 F.Supp. 676, 681; People v. Carreon, 1984, 198 Cal.Rptr. 843, 847, 151 Cal.App.3d 559, 567 (citing cases). See also Dusky v. U.S., 1960, 80 S.Ct. 788, 789, 362 U.S. 402, 4 L.Ed.2d 824 (criminal defendant must possess "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding"). See generally, Chang & Araujo, Interpreters for the Defense: Due Process for the Non-English-Speaking Defendant, 1975, 63 Cal.L.Rev. 801, 816-820. But see Cervantes v. Cox, C.A.10th, 1965, 350 F.2d 855 ("There is no constitutional right as such, requiring the assistance of a court-appointed interpreter to supplement the right to counsel.").
[FN18]. Presence at trial
See, e.g., U.S. ex rel. Negron v. New York, C.A.2d, 1970, 434 F.2d 386, 389; Baltierra v. State, Tex.Cr.App.1979, 586 S.W.2d 553, 556-559; State v. Natividad, 1974, 526 P.2d 730, 733, 111 Ariz. 191.
See, e.g., U.S. v. Carrion, C.A.1st, 1973, 488 F.2d 12, 14, certiorari denied 94 S.Ct. 1613, 416 U.S. 907, 40 L.Ed.2d 112; U.S. ex rel. Negron v. New York, C.A.2d, 1970, 434 F.2d 386, 389; Baltierra v. State, Tex.Cr.App.1979, 586 S.W.2d 553, 556-559. See generally Chang & Araujo, Interpreters for the Defense: Due Process for the Non-English-Speaking Defendant, 1975, 63 Calif.L.Rev. 801, 813-816.
[FN20]. Due process
See, e.g., U.S. v. Carrion, C.A.1st, 1973, 488 F.2d 12, 14, certiorari denied 94 S.Ct. 1613, 416 U.S. 907, 40 L.Ed.2d 112; U.S. ex rel. Negron v. New York, C.A.2d, 1970, 434 F.2d 386, 389; People v. Beltran, 1985, 215 Cal.Rptr. 870, 874, 193 Cal.App.3d 650, review granted 1985, 707 P.2d 760, 219 Cal.Rptr. 387; People v. Carreon, 1984, 198 Cal.Rptr. 843, 847-850, 151 Cal.App.3d 559, 567-571. See generally Chang & Araujo, Interpreters for the Defense: Due Process for the Non-English-Speaking Defendant, 1975, 63 Calif.L.Rev. 801, 812-820.
[FN21]. Equal protection
See Jara v. Municipal Court for San Antonio Jud.Dist., 1977, 137 Cal.Rptr. 533, 541, 68 Cal.App.3d 673, vacated 1978, 578 P.2d 94, 145 Cal.Rptr. 847, 21 Cal.3d 181, certiorari denied 99 S.Ct. 833, 439 U.S. 1067, 59 L.Ed.2d 32. See generally Chang & Araujo, Interpreters for the Defense: Due Process for the Non-English-Speaking Defendant, 1975, 63 Calif.L.Rev. 801, 804-812.
[FN22]. Financial means
See, e.g., Luna v. Black, C.A.8th, 1985, 772 F.2d 448, 451 ("an indigent defendant who has obvious difficulty with the language has a right to a court- appointed interpreter"); U.S. v. Carrion, C.A.1st, 1973, 488 F.2d 12, 14, certiorari denied 94 S.Ct. 1613, 416 U.S. 907, 40 L.Ed.2d 112 (same); U.S. v. Martinez, C.A.5th, 1980, 616 F.2d 185, 187-188, certiorari denied 101 S.Ct. 1694, 450 U.S. 994, 68 L.Ed.2d 193 (trial court did not abuse its discretion by refusing to appoint an interpreter where defendant's attorney was qualified to translate for his client and no attempt was made to show that defendant could not afford his own interpreter); U.S. v. Desist, C.A.2d, 1967, 384 F.2d 889, 901, affirmed 89 S.Ct. 1030, 394 U.S. 244, 22 L.Ed.2d 248 (no error not to appoint interpreter where request was "specifically not based on indigency").
[FN23]. Federal cases
It might be argued that refusal to appoint a party or proceedings interpreter for an indigent party in a civil case denies that party equal protection of the law since it limits his ability to have his claims heard. See Boddie v. Connecticut, 1971, 91 S.Ct. 780, 784-785, 401 U.S. 371, 375-376, 28 L.Ed.2d 113 (state law conditioning judicial decree of divorce on claimant's ability to pay court fees and costs held unconstitutional). However, the Supreme Court has severely limited the extent to which lack of equal access to civil adjudication of disputes raises equal protection problems. See, e.g., Ortwein v. Schwab, 1973, 93 S.Ct. 1172, 1174, 410 U.S. 656, 659, 35 L.Ed.2d 572 (no violation of equal protection where state required filing fee to obtain access to appellate court review of agency reductions in welfare payments). There is no doubt that a court at least has the power to appoint interpreters in civil cases. See Fed.R.Civ.Proc. 43(f). However, the court also has the power in such cases to tax the parties for the cost of interpretation. Id.
[FN24]. Civil litigation
N.L.R.B. v. Union Nacional de Trabajadores, C.A.1st, 1976, 540 F.2d 1, 5-6 n. 3, certiorari denied 97 S.Ct. 736, 429 U.S. 1039, 50 L.Ed.2d 750 (court rejects argument that agency's failure to provide parties with interpreters during hearings constituted denial of due process; "Here, where respondents' interest is only to avoid a civil sanction, we conclude that the governmental interest in retaining the present procedures outweighs respondent's interest in the additional procedural safeguards"); Jara v. Municipal Court for San Antonio Judicial Dist., 1978, 578 P.2d 94, 145 Cal.Rptr. 847, 21 Cal.3d 181, certiorari denied 99 S.Ct. 833, 439 U.S. 1067, 59 L.Ed.2d 32 (there is no need for courts to require appointment of interpreters at public expense to assist civil litigants since there are alternative sources of language assistance in the community).
[FN25]. Court Interpreters Act
28 U.S.C.A. 1827(d). The Court Interpreters Act applies "in any criminal or civil action initiated by the United States in a United States district court."
[FN26]. Federal cases
See U.S. ex rel. Navarro v. Johnson, D.C.Penn., 1973, 365 F.Supp. 676, 682- 683 n. 3:
"[T]he defendant's constitutional rights may require the presence of two interpreters. Such a situation might have arisen in the present case during the period when the court interpreter was translating the testimony of the Spanish-speaking witness for the benefit of the Court, at which time Navarro was unable to communicate with his lawyer. Such situations are likely to occur in long trials where credibility is the central issue, where cross- examination of witnesses speaking in the foreign tongue is therefore critical, but where interruption of the testimony (as in the present case) is impractical. Unless a second interpreter is somehow furnished, the defendant's incapacity to respond to specific testimony will 'inevitably hamper the capacity of his counsel to conduct effective cross-examination."'
[FN27]. State cases
See, e.g., People v. Aguilar, 1984, 200 Cal.Rptr. 908, 677 P.2d 1198, 35 Cal.3d 785; Bednarski v. Bednarski, 1985, 366 N.W.2d 69, 141 Mich.App. 15; People v. Carreon, 1984, 198 Cal.Rptr. 843, 151 Cal.App.3d 527; In re Dung T., 1984, 206 Cal.Rptr. 772, 160 Cal.App.3d 697; People v. Menchaca, 1983, 194 Cal.Rptr. 691, 146 Cal.App.3d 1019.
[FN28]. Uninterrupted service
See People v. Aguilar, 1984, 200 Cal.Rptr. 908, 911-913, 677 P.2d 1198, 35 Cal.3d 785 (borrowing defendant's interpreter to translate testimony deprives defendant of ability to communicate with counsel at key moments when damaging testimony is introduced); People v. Menchaca, 1983, 194 Cal.Rptr. 691, 693- 694, 146 Cal.App.3d 1019 (without a party or proceedings interpreter, defendant may have difficulty following testimony even if a witness interpreter is used and resulting confusion would prevent defendant from assisting counsel on cross-examination; "Such a trial comes close to being an invective against an insensible object, possibly infringing upon the accused's basic 'right to be present in the courtroom at every stage of his trial"'). See Chang and Araujo, Interpreters for the Defense: Due Process for the Non-English-Speaking Defendant, 1975, 63 Calif.L.Rev. 801, 821-822.
[FN29]. Defense counsel
See, e.g., People v. Chavez, 1981, 117 Cal.Rptr. 306, 313, 124 Cal.App.3d 215.
[FN30]. Separate interpreters
See, e.g., People v. Resendes, 1985, 210 Cal.Rptr. 609, 164 Cal.App.3d 812; People v. Rioz, 1984, 207 Cal.Rptr. 903, 161 Cal.App.3d 905.
People v. Rodriguez, 1986, 232 Cal.Rptr. 132, 138, 42 Cal.3d 1005 ("the absence of a personal interpreter may be found harmless because the proceedings which took place while the interpreter was absent may be insubstantial or concern matters which are not possibly prejudicial to the defendant, or because there is no allegation that the deprivation actually affected any of the defendant's rights").
FPP s 6056 (R 604)
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