In a criminal proceeding, rights are conveyed by words. Words have meaning. If the words have no meaning to a defendant, then such a defendant has no rights. A trial without rights is a proceeding without due process of law and fundamental fairness. It is a sham.

The problem of non-English speaking defendants in criminal proceedings who go without any or inadequate translation will not resolve itself. Courts, prosecutors, and the defense bar all bear a burden to become literate on the issue of adequate interpretation for non-English speaking defendants in criminal proceedings. Otherwise our halls of justice will devolve into a Kafkaesque nightmare of misunderstood charges, dishonored rights, and unfair convictions. The majesty of the law requires something better.

Before summarily dismissing my reflections as appellate rhetoric or "ivory tower" musing, let me say I am not unmindful or unknowledgeable of the plight of the trial court itself in addressing the needs of the non-English speaking defendant.

Having been in the trial court trenches myself for a few years, I remember well a courtroom full of people, prosecutors and defense attorneys lined up end to end, prisoners in holding cells waiting to be brought before the bench, and video arraignments to be called from the county jail. Amidst the chaos, you have your routine down pat. Each prosecutor, defense attorney, and defendant moves in just the right cadence when all of a sudden the whole march is halted by a voice over the video monitor from the county jail. "No hablo inglés," the defendant says. You try to proceed with your litany to no avail. The defendant isn't comprehending any of your words. Finally your high school or college Spanish courses pay off and you remember one word, mañana (tomorrow). At a loss of how to proceed, further arrangements are made for a court appointed interpreter to be in court with the defendant the next day.

In my jurisdiction of the Ninth District Court of Appeals in Ohio we are fortunate. Qualified interpreters are available at least in the more commonly spoken foreign languages, such as Spanish.

But what happens if interpreters are not qualified, not certified, or not available and who pays for this, both figuratively and practically speaking?

One particular trial I had as a trial judge had to be continued two times due to our inability to locate and obtain a qualified (let alone certified) court interpreter in the defendant's foreign language and dialect. Until a qualified interpreter was found, we had to rely on the defendant's family members to interpret for defendant at pre-trial proceedings. Obviously, this is not the recommended procedure as there is no guarantee of trustworthiness or competency of the interpretation, not to mention the issue of bias or conflict of interest. But courts often in these situations face these challenges, particularly in pre-trial settings.

However, fealty to constitutional and evidentiary rules cannot and must not be encroached upon by notions of cost and convenience, and must be enforced and facilitated without regard to a cost-benefit analysis. In Ohio, the controlling law of the Sixth Circuit Court of Appeals requires that special care is required in explaining rights to a non-English speaking defendant who "apparently had no knowledge of the American criminal justice system." United Sates v. Short, 790 F.2d 464, 469 (6^th Cir. 1986). That is, translators for non-English speaking defendants must convey rights with a precision sufficient to apprise an accused of their rights. See Duckworth v. Eagan, 492 U.S. 195, 202 (1989). When translating witness testimony, an interpreter should give a literal translation of the witness' words. State v. Rodriguez, 169 N.E.2d 444 (1959). See, also, State v. Pina, 361 N.E.2d 262 (1975).

Insuring that non-English speaking defendants receive adequate interpretation assures satisfaction of the due process clause. Honoring this constitutional imperative serves three primary purposes: (1) it demonstrates obedience to the Constitution; (2) it preserves a moral sense of fairness in the proceedings for all; and (3) it prevents the redundancy in time and cost for a retrial, which does violence to the preference in the law for finality of judgments. The foregoing considerations demonstrate the profound constitutional, moral, and practical cost of inadequate translation in criminal proceedings. The cost in what is lost is more than the system should bear.
 

In a country which was settled by alien immigrants and which continues to receive hundreds of thousands of immigrants and foreign travelers annually, the problem of protecting the rights of the non-English speaking accused cannot continue to be ignored by our judicial system. . . Our legal system must be flexible and must be able to adapt itself to fit the situation by giving importance to the protection of the substantive rights of the individual and must not be bound by technical or artificial procedural devices.

Each English-speaking "citizen" of the United States is outraged and belligerent when he reads of the problems encountered by a fellow citizen involved, innocently or otherwise, in a crime in a foreign country in which that same person is tried and sentenced in the "foreign" country according to the "foreign" legal system. Each person can empathize and imagine himself in an alien society confronted by a strange legal system, with his future hanging in the balance of justice, and not able to understand any of the testimony being offered against him. . . His only contact with the proceeding would be the points his court-appointed counsel thought important enough to be communicated to him. [Benjamin G. Morris, The Sixth Amendment's Right of Confrontation and the Non-English Speaking Accused, 41 Fla. B.J. 475, 481-82 (1967).]

Appellate review is the last bulwark or bastion of protection of non-English speaking defendants' constitutional rights. However, often times meaningful review of interpretation issues is a mere illusion since appellate courts are constrained by the record of proceedings in the lower court. A transcript produced by an English-only court reporter is obviously insufficient for adequate review, as the court reporter cannot reproduce the foreign language interpretation. A practical reform would be moving to video or audio recording of any proceedings where the issue of the comprehension of non-English speaking defendants would arise and/or interpretation is performed. Technological advances, and corresponding price drops in video and audio technology, render this a reasonable solution to ensure satisfactory appellate review. A tangible record is an absolute necessity in order for an appellate court to be able to examine any error.

However, the due process challenges for non-English speaking defendants are comprehensive, and extend before the trial even starts:
 

Cultural and language barriers may affect whether a defendant is able to make a voluntary confession, knowingly and voluntarily consent to a search, waive the right to trial by jury, or fully understand the elements of the charge, the rights waived, and the effect of the plea in a plea bargain proceeding. Lack of knowledge of the American legal system, rights under the Constitution, English language difficulties, and cultural background differences, along with other factors, have been considered in judicial assessments of whether there is a voluntary and knowing waiver of such rights. [Richard W. Cole, Laura Maslow-Armand, The Role of Counsel and the Courts in Addressing Foreign Language and Cultural Barriers at Different Stages of a Criminal Proceeding, 19 W. New Eng. L. Rev. 193, 196 (1997).]

Whether an interpreter is appointed for a defendant lies wholly within the discretion of the trial judge. While the law accords courts discretion in this area, it cannot be abused. Again, it is incumbent on the defense to preserve the record for appellate review.
 

The right to a court-appointed interpreter in criminal proceedings is squarely within the discretion of the trial judge. Only in limited circumstances have appellate courts held that the failure of trial courts to afford adequate interpreter services constituted an abuse of discretion or was clearly erroneous in violation of a defendant's federal or state constitutional or statutory rights.

Although different judicial tests have been applied to determine if failure to provide an interpreter was error, appellate courts appear to focus the inquiry on whether a defendant had been denied a fair trial or whether the proceedings were fundamentally unfair, considering the totality of the circumstances. The review is highly factual and varies from case to case. Where a trial court has failed to appoint a qualified interpreter, the burden falls on the criminal defendant to show that his lack of comprehension of the proceeding was so complete that the trial was fundamentally unfair. [Richard W. Cole, Laura Maslow-Armand, The Role of Counsel and the Courts in Addressing Foreign Language and Cultural Barriers at Different Stages of a Criminal Proceeding, 19 W. New Eng. L. Rev. 193, 196-197 (1997).]

In trying to resolve the somewhat amorphous question of "fairness" to non-English speaking defendants, reviewing courts' analysis would be informed by considering the following questions:
 

1. Did the non-English speaking defendant have counsel, and, if so, was the defendant able to consult with and assist his or her attorney?

2. Did the defendant possess sufficient fluency in English to understand the testimony heard, the charges alleged, and the rights recited, or was he or she significantly inhibited in the ability to comprehend any portion of the proceedings?

3. Did the defendant understand and respond to questions during examination without substantial difficulty?

4. Did the defendant inform the trial court that he or she required an interpreter in order to make each and every aspect of the criminal proceeding comprehensible, or should the trial court have recognized that the defendant's comprehension at trial was significantly inhibited by language difficulties, and, if so, was interpretation provided at all times?

5. Were the indictment and other critical written documents translated and provided in writing to the non-English speaking defendant in his or her own language?

6. Was the defendant actually prejudiced by his or her inability to comprehend any portion of the proceedings?

7. Did the defendant knowingly and voluntarily waive the right to have an interpreter at trial?

Other questions asked by appellate courts to ensure that criminal proceedings themselves were fundamentally fair and that the defendant preserved his or her legal rights include:
 

1. Was the interpreter "certified" or "qualified"?

2. Was the interpreter competent and impartial?

3. Was the interpretation generally accurate?

4. Did the defendant alert the court in a timely fashion of the deficient qualifications or lack of impartiality of the interpreter or timely object to the lack of accuracy of the interpreter services provided?

Factors that courts consider in determining a defendant's need for an interpreter are the defendant's length of stay in the United States, the nature of his or her professional or social interaction while residing in this country, as well as occupation, education, intelligence level, and citizenship status. Some courts will focus only on the defendant's level of fluency in speaking English. [Richard W. Cole, Laura Maslow-Armand, The Role of Counsel and the Courts in Addressing Foreign Language and Cultural Barriers at Different Stages of a Criminal Proceeding, 19 W. New Eng. L. Rev. 193, 198-199 (1997).]

Courts have generally taken a flexible, commonsense approach to ruling on the adequacy of interpretations of Miranda warnings for non-English speaking defendants:
 

Generally, when police show a card containing Miranda warnings in the non-English speaking defendant's language, it is sufficient to permit a waiver of rights if the defendant has read the card and indicates an understanding of what he has read. . . To create a record on which to appeal a court's ruling that Miranda warnings were adequately interpreted, a defendant must introduce evidence of the questionable interpretation practices of the interpreter, the terms or legal concepts misused, or evidence demonstrating a defendant's lack of comprehension. [Richard W. Cole, Laura Maslow-Armand, The Role of Counsel and the Courts in Addressing Foreign Language and Cultural Barriers at Different Stages of a Criminal Proceeding, 19 W. New Eng. L. Rev. 193, 203-204 (1997).]

Adequate recitation of Miranda warnings does not end the analysis of whether a pre-trial statement is admissible:
 

[M]any courts preserve constitutional guarantees by their examination of the voluntariness of waiver or consent. The use of testimony by linguistic experts has become increasingly common in challenges to voluntariness. However, evaluation by private experts may be unavailable to the poor defendant dependent on public resources for his defense. [Note, Alien Defendants in Criminal Proceedings: Justice Shrugs, 36 Am. Crim. L. Rev. 1395, 1404 (1999).]

As with any right in trial, failure to timely raise the issue will result in an enforceable waiver:
 

When either the defense or prosecution questions the qualifications or competency of the interpreter, contests the interpreter's ability to communicate with the defendant or witness, or challenges whether the interpreter is unbiased, counsel should request a hearing prior to trial to examine such competence or bias, which may include a voir dire of the interpreter. If misinterpretations are claimed during trial, objections should be made outside the hearing of the jury.

During the trial, the prosecution or defense may challenge inaccurate or incomplete interpretations to cure them. *** Objections to trial interpretation errors must be made in a timely fashion or they are generally waived. [Richard W. Cole, Laura Maslow-Armand, The Role of Counsel and the Courts in Addressing Foreign Language and Cultural Barriers at Different Stages of a Criminal Proceeding, 19 W. New Eng. L. Rev. 193, 222 (1997). ]

A practical solution to any interpretation dispute is to have a party pose their question anew so that it may be reinterpreted.

Of course, courts must be mindful of the malingering defendant who, upon arrest, has suddenly lost much or all of their functional English. But just as courts regularly convene hearings on competency or the alleged insanity of defendants, so too could a hearing be convened to accurately gauge the defendant's English language deficit and need for an interpreter. In this vein the court should consider and police should investigate whether the defendant had English speaking only friends, worked in an English speaking work environment, had English speaking interactions with the police or other state's witnesses, and consider any documentary evidence that suggested English proficiency, such as magazines, books, receipts, bills, and letters. Thorough investigation by the police will also assist courts in dispatching of specious postconviction claims. After conviction and incarceration, an empty and self-serving claim of "I didn't understand," by a defendant with nothing to lose, without more, is not enough to trigger the postconviction machinery of the courts. Vigilance against false claims will insure that this important issue will continue to be treated seriously instead of being denied with a wink and a smile rubber stamp denial.

The criminal justice system must do better to preserve the rights of non-English speaking defendants. Consider Lady Justice, blind to all but imparting justice for everyone, not just English speakers. Rights and testimony at trial must be communicated and understood in order to preserve the constitutional order, honor fundamental fairness, and prove that Lady Justice is more than a mere token.