"Without qualified interpretation of courtroom proceedings, the trial is a `babble of voices,' the defendant is unable to understand the nature of the testimony against him or her, and the counsel is unable to conduct an effective examination." ~ Final Report of the California Judicial Council Advisory Committee on Racial and Ethnic Bias in the Courts

Imagine that you are on vacation in South America when you are suddenly arrested by local police. Imagine further that you speak very little Spanish. You are whisked away to the local police department. The officers are talking to you, questioning you; you only manage to understand an occasional word spoken. All you hear is a babble of voices. You try to ask for a phone call. A phone call? Defendants are not given "a phone call." You attempt to speak, not realizing that everything you say is being interpreted as guilt in the crime for which you have been arrested. Eventually, an interpreter arrives. You sigh with relief.

Your relief, however, soon turns to absolute frustration and slowly, horror. The interpreter is simply carrying on conversations with the police. You are occasionally asked a question in English, often it is broken English and does not make much sense to you. You try to answer, but your six-word-spoken-sentence suddenly becomes fodder for another lengthy conversation with the interrogator. Finally, after several hours of this, you are thrown in a jail cell. You have no idea why you have been arrested. You have no idea what just transpired. You have no idea what will happen in the next five minutes, let alone tomorrow or the next five months.

When you are finally taken to the local court, again, everyone around you is speaking Spanish. You are the target of the conversation—this is clearly indicated by the gestures made towards you—but you do not understand what is being spoken to you; once again you are victim of hearing only a babble of voices. The interpreter from the week before materializes and the same scenario as before happens again: Only a few words are actually interpreted for you, while long conversations about you and your "case" proceed with no interpretation (and hence, no understanding) by you. You are eventually led back to your cell. You try to ask to call someone to help you, family, a friend, even the American Embassy, but no one understands you well enough and you are never permitted to use the telephone.

Your "day in court" arrives. You are convicted and sent to prison. You are still in South America. You have no idea for how long.

While many are thinking that such a scenario is to the point of the ridiculous and sublime, this happens every day in the United States and every week in Kentucky. This author has personally seen local examples of such a scenario. Clients who speak little-to-no English are arrested, interrogated, tried, and convicted with the assistance of interpreters who are hired simply because they are bilingual. They have no experience or training in interpreting;¹ they have no understanding of the legal system at all, let alone any legal terminology. These interpreters have no understanding of any rules of ethics. They are often nothing more than additional "arms" of the police or the prosecutors. Such denials of defendants' constitutional rights occur every day, not necessarily because anyone intends to deny these defendants' their constitutional rights, but because no one knows any better. It is past time for this scenario to change and Kentucky itself has recognized this.

As of January 2001, Kentucky joined the National Center for State Courts, State Court Interpreter Certification Consortium ("Consortium").² Kentucky has joined 23 other states in this nation by becoming a member of this important organization. As the Introduction: Background and Purposes section of the Consortium explains:
 

Audits of interpreted court proceedings in several states have revealed that untested and untrained "interpreters" often deliver inaccurate, incomplete information to both the person with limited English proficiency and the trier of fact. Poor interpreting constrains equal access to justice for persons with limited English proficiency involved in legal proceedings. Every state which has examined interpreted court proceedings has concluded that interpreter certification is the best method to protect the constitutional rights of court participants with limited English proficiency. Id (Emphasis added).

With Kentucky's Administration Office of the Courts' decision to join the Consortium comes an additional important step to ensuring every defendant who does not speak English a qualified and adequate interpreter to secure his constitutional rights to a fair trial and due process.

Kentucky has several rules and statutes relating to court interpreters. KRS 30A.400-30A.435. KRE 604 requires that a "true translation" occur and states that KRE 702, regarding qualifications as an expert, applies to interpreters. 30A.435 requires that an interpreter be "qualified by training or experience...." While both the rule and statutes have been applied very ambiguously in courtrooms across the state, the new association with the Consortium should ensure more consistent and adequate application.

As the Consortium Agreement 1.0 Consortium Role explains, the "functions of the Consortium shall be to establish court interpretation test development and administration standards, to provide testimony materials, to develop education programs and standards, and to facilitate information sharing among the member states and entities, in order that individual, member states and entities may have the necessary tools and guidance to implement certification programs."

In the United States and Kentucky, every defendant has the constitutional right to a fair trial, including the right to counsel and the right to present a defense. U.S. Constitution, 5^th, 6^th, and 14^th Amendments; Ky. Constitution, §§ 2, 3, 11, and 13. Negron v. New York, 434 F.2d 386 (2^nd Cir. 1970) inspired Congress to pass the federal Court Interpreters Act of 1978. In addition, basic constitutional rights that are afforded to all English-speaking persons should be afforded no less to non-English-speaking persons. These basic constitutional rights include the right of every defendant to (1) know and understand the nature of the charges against him; United States v. Short, 790 F.2d 464 (6^th Cir. 1986) was a Kentucky case where the 6^th Circuit Court of Appeals held, inter alia, that the government failed to meets its burden of a knowing and intelligent Miranda waiver by the defendant where the defendant was a West German national who was not fluent in English but was subjected to interrogation in English, even though one of the agents spoke some German. (2) be present at his own trial and to be able to hear and understand all of the proceedings and the testimony presented against him; (3) effectively cross examine witnesses against him; See Ko v. United States, 694 A.2d 73 (D.C. 1997) _ right to confront witnesses incorporates the constitutional right to an interpreter. (4) participate in his defense; and (5) knowingly, intelligently and of his own free will waive his right to testify. U.S. Constitution, Amendments 5, 6, and 14; Kentucky Constitution, §§ 2, 3, 11, and 13.

Recently, the Kansas Supreme Court held that denial of an interpreter during closing arguments required reversal. State v. Calderon, 13 P.3d 871 (Kan. 12/8/00). The majority stated that the right of presence is a fundamental right and that it includes a right to have trial proceedings interpreted into a language that the defendant understands "so that he or she can participate effectively in his or her own defense." Id.

The Kansas Court also cited the U.S. Supreme Court case Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992), that there is a fundamental assumption underlying the adversary system, derived from the right of presence that the trier of fact will observe the accused throughout the trial. Riggins pointed out that how the defendant reacts, or fails to react, to the events of the trial can make a powerful impression on the jury. If a defendant doesn't understand, and is therefore unable to react, to testimony or opening or closing arguments, then the defendant has been denied a

meaningful presence. The Kansas Court declared that the error "implicate[d] basic considerations of fairness," and the Court was "not permitted to determine that it was harmless beyond a reasonable doubt."

The Kansas case is illustrative of the basic constitutional rights that are violated when a defendant is denied a qualified interpreter. While there is little caselaw which states so strongly that which the Court in Calderon emphatically declares, this case is useful as an example of the direction the Courts are going in determining court interpreter issues.

Below is a sample motion [Ed: the motion that appeared below in the print edition is not reproduced in the HTML version.  A Word '97 version of the motion is available here]  that should be utilized (or something similar) in every case where there is even the slightest hint that a defendant may not understand English fully. Utilizing the Kentucky rules, statutes, and now its role as a member of the Consortium, there is no legal reason for a non-English-speaking defendant to not be provided a qualified interpreter. Such a provision ensures not only the protection of the defendant's constitutional rights, but ensures fewer cases reversed for inadequate interpretation, and ensures a fairness in the system that is important to all.

NOTES:

(1) It is highly recommended that when filing this type of motion that the attorney attach a copy of the Suggested Guide for Interpreted Proceedings (included in this issue of The Advocate) as a basis for determining a court interpreter's qualifications, or, at the very least, include the points made and questions asked in the Guide as numbers within the motion itself. This may mitigate against those trial courts which assume their local interpreter—who happens to be bilingual but have no other training, etc.—is qualified. Also, making a request to utilize the Guide will ensure the entire proceedings regarding the court interpreter are done appropriately and fairly and will protect the record on appeal.

(2) Attorneys and judges who often come into contact with Spanish speaking clients or witnesses should become familiar with the rules of ethics governing interpreters. A good starting point for this is the National Association of Judiciary Interpreters and Translators (NAJIT). See http://www.najit.org/.

(3) Attorneys and judges should request resumes or C.V.s and evaluate the credentials of the interpreters they plan to hire. Professional organizations such as NAJIT can assist in evaluating the adequacy and qualifications of the interpreter. See the other articles in this series also in this issue of The Advocate.

ENDNOTES

1. Are you considering becoming a court interpreter? See Suggested Guide for Interpreted Proceedings at page 17 in this issue. See also "Qualifications for court interpreting" available at http://www.ncsc.dni.us/RESEARCH/INTERP/Qualifications.htm.

2. Information provided in this article regarding the Consortium can be found at http://www.ncsc.dni.us/RESEARCH/INTERP/Agreement.htm.