United States: Whether interpretation is provided to defendants who are pleading guilty to criminal charges if they do not speak or understand English; whether interpretation is provided at the federal level for federal charges and the state level for state charges; whether the defendant must request interpretation or whether it is offered; the quality of interpretation
|Publisher||Immigration and Refugee Board of Canada|
|Publication Date||3 June 2010|
|Citation / Document Symbol||USA103491.E|
|Related Document||États-Unis : information indiquant si un service d'interprétation est offert aux défendeurs qui plaident coupable à des accusations criminelles s'ils ne parlent pas anglais ou ne le comprennent pas; si ce service est fourni tant par l'administration fédérale (accusation en vertu d'une loi fédérale) que par les administrations des États (accusation en vertu d'une loi d'un État); si les défendeurs doivent solliciter le service ou si celui-ci leur est offert; information sur la qualité de l'interprétation|
|Cite as||Immigration and Refugee Board of Canada, United States: Whether interpretation is provided to defendants who are pleading guilty to criminal charges if they do not speak or understand English; whether interpretation is provided at the federal level for federal charges and the state level for state charges; whether the defendant must request interpretation or whether it is offered; the quality of interpretation, 3 June 2010, USA103491.E, available at: http://www.refworld.org/docid/4f5f2e812.html [accessed 23 May 2013]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
In a 17 May 2010 telephone interview conducted by the Research Directorate, an attorney with the National Center for State Courts (NCSC) - "an independent, non-profit court improvement organization" (NCSC n.d.a) - said that interpretation is provided for defendants who have limited English proficiency at the federal level for federal charges and at the state level for state charges. This information was corroborated in a telephone interview with an Associate Professor at the Graduate School of Translation, Interpretation and Language Education at the Monterey Institute of International Studies (25 May 2010). Similarly, the Associate Dean for Clinical Education at Northwestern University's School of Law said in a telephone interview that interpretation is provided in most jurisdictions (13 May 2010).
Interpretation in federal court
With respect to interpretation provided at the federal level, the federal Judiciary and Judicial Procedures Act states:
(a) The Director of the Administrative Office of the United States Courts shall establish a program to facilitate the use of certified and otherwise qualified interpreters in judicial proceedings instituted by the United States.
The Director may certify interpreters for any language if the Director determines that there is a need for certified interpreters in that language. (US Jan. 2003)
According to the website of the United States (US) Federal Court, certification examinations have been developed for Spanish, Navajo, and Haitian-Creole (US n.d.). Those who pass the relevant examinations in any of these three languages are considered to be certified interpreters (ibid.). However, the website also indicates that certification programs are no longer being offered for Navajo or Haitian-Creole (ibid.). The Associate Professor corroborated this information (25 May 2010).
The Administrative Office of the US Courts has indicated that services may also be provided either by "professionally qualified interpreters" or "language-skilled/ad hoc interpreters" (US n.d.). Professionally qualified interpreters must meet one of several criteria designated by the Administrative Office, for example, by passing "the interpreters test of the United Nations (UN) in a language pair that includes English and the target language" (US n.d.).
A language-skilled, ad hoc interpreter is
[a]n interpreter who does not qualify as a professionally qualified interpreter, but who can demonstrate to the satisfaction of the court the ability to interpret court proceedings from English to a designated language and from that language into English .(ibid.)
Interpretation in state courts
Executive Order 13166 - Improving Access to Services for Persons with Limited English Proficiency was signed in 2000 with the aim of improving "access to federally conducted and federally assisted programs and activities for persons who, as a result of national origin, are limited in their English proficiency" (US 16 Aug. 2000). Further to this executive order, the US Department of Justice issued final guidance to federal fund recipients in 2002 (18 June 2002, 41455). Many state court systems receive either direct or indirect federal funding (US 21 Feb. 2008, 2).
With respect to courts, the guidance states, "[a]t a minimum, every effort should be taken to ensure competent interpretation for LEP [Limited English Proficiency] individuals during all hearings, trials, and motions during which the LEP individual must and/or may be present" (US 18 June 2002, 41471). In addition, the guidance states:
Many states have created or adopted certification procedures for court interpreters. This is one way for recipients to ensure competency of interpreters. Where certification is available, courts should consider carefully the qualifications of interpreters who are not certified. Courts will not, however, always be able to find a certified interpreter, particularly for less frequently encountered languages. In a courtroom or administrative hearing setting, the use of informal interpreters, such as family members, friends, and caretakers, would not be appropriate. (ibid.)
The Associate Professor corroborates that many states will certify interpreters in many languages (25 May 2010). For example, forty states have joined the Consortium for Language Access in the Courts (NCSC 11 June 2009). Membership allows them to access examinations that can be used to certify interpreters in 16 languages (ibid. n.d.b.). These languages include Arabic, Cantonese, Haitian-Creole, Russian and Somali, among others (ibid. n.d.c.).
Nonetheless, according to the Associate Professor, interpreters used in state courts are often not certified, with the exception of Spanish-English interpreters (25 May 2010).
Quality of interpretation
The Associate Professor stated that the quality of interpretation provided by ad hoc interpreters - whether at the federal or state level - is "unpredictable" (25 May 2010). For example, the interpreter may or may not be skilled in simultaneous interpretation or familiar with complex legal terminology (Associate Professor 25 May 2010). The NCSC Attorney also stated that ad hoc interpreters are commonly used in state courts and the quality of interpretation can be "uncertain" (17 May 2010). The Associate Dean similarly indicated that although interpreters used in court are supposed to be trained in legal terminology, the quality of interpretation can be a problem (13 May 2010).
Process for acquiring an interpreter
The Associate Professor stated that the courts provide interpretation for cases involving criminal charges (25 May 2010). She indicated that the fact that an individual has limited English proficiency is noted in the file and an interpreter is, ideally, made available from the defendant's first appearance (Associate Professor 25 May 2010). In practice, this is often the case when Spanish-English interpretation is required (ibid.). For other languages, it may take some time for the services of an interpreter to be obtained, although by the time that the first evidentiary hearing is held, an interpreter is usually available (ibid.). The Associate Dean for Clinical Education stated that if an interpreter is not available, and the judge has reason to believe that the defendant has limited proficiency in English, the judge can request an interpreter (13 May 2010). The Associate Dean said ensuring that the defendant understands the proceedings by providing interpretation is a means of ensuring that a plea is knowing and voluntary (13 May 2010).
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
Associate Dean for Clinical Education, Northwestern University, School of Law [Chicago]. 13 May 2010. Telephone interview.
Associate Professor, Graduate School of Translation, Interpretation and Language Education, Monterey Institute of International Studies [California]. 25 May 2010. Telephone interview.
National Center for State Courts (NCSC). 17 May 2010. Telephone interview with an attorney.
_____. 11 June 2009. "Consortium for State Court Interpreter Certification: Member States."
_____. N.d.a. "What is the National Center for State Courts?"
_____. N.d.b. "Member Benefits, Resources, and Responsibilities."
_____. N.d.c. "Consortium Oral Examinations Ready for Administration."
United States (US). 21 February 2008. Department of Justice (DOJ). "Interpreters for LEP Individuals." Correspondence from the DOJ to the National Center for State Courts (NCSC) providing comments on Bench Book. (National Association of Judiciary, Interpreters and Translators)
_____. January 2003. USC 1827 - Sec. 1827. Interpreters in Courts in the United States, Title 28: Judiciary and Judicial Procedures. (Cornell University)
_____. 18 June 2002. "Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons." Federal Register. Vol. 67, No. 117.
_____. 16 August 2000. The President: Executive Order 13166 - Improving Access to Services for Persons with Limited English Proficiency. Federal Register. Vol. 65, No. 159.
_____. N.d. "Federal Court Interpreters."
Additional Sources Consulted
Publications, including: Title VI of the 1964 Civil Rights Act.
Internet sites, including: Brennan Center for Justice, Cornell University, Justice Journalism, National Association of Clinical Defense Lawyers, National Association of Judiciary, Interpreters and Translators, United States (US) Court of Appeals, US Federal Interagency Working Group on Limited English Proficiency, Widner Law, Court Interpreter Program.