Lost in Translation Summer Series 2007

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LOST IN TRANSLATION:: 

LOST IN TRANSLATION: A Defender’s Guide to Effective Assistance of Counsel When You Don’t Speak the Language

THE RIGHT TO INTERPRETATION: 

THE RIGHT TO INTERPRETATION CONSTITUTIONAL RIGHTS IN CRIMINAL PROCEEDINGS

Right to Confront Witnesses: 

Right to Confront Witnesses “A defendant whose fluency in English is so impaired that it interferes with his right to confrontation or his capacity, as a witness, to understand or respond to questions has a constitutional right to an interpreter.” See Ko v. United States, 722 A.2d 830, 834 (D.C. 1998).

Right to a Fair Trial: 

Right to a Fair Trial “If a defendant who is unable to speak or understand English is compelled to face criminal charges without access to effective translation of the proceedings, then his ability to present a defense may be substantially undermined, and there is a serious possibility of a grave injustice.” See Ko v. United States, 722 at 834.

INTERPRETER ACT D.C. Official Code §2-1901 (2001) et. seq.: 

INTERPRETER ACT D.C. Official Code §2-1901 (2001) et. seq. The District of Columbia Court of Appeals opined in Ko that the Interpreter Act was enacted to vindicate the constitutional rights of communication-impaired clients in the District of Columbia, including D.C. Superior Court. See Ko at 835. Codifies the policies and procedures for interpreting services for clients who are communication-impaired (hearing impaired or limited or no-English proficiency) in all types of hearings and proceedings, including court proceedings.

INTERPRETER ACT D.C. Official Code §2-1901 et. seq. (2001) (cont’d): 

INTERPRETER ACT D.C. Official Code §2-1901 et. seq. (2001) (cont’d) An “appointing authority” includes any judge of the court of the District of Columbia. A “communication-impaired” person is a person whose hearing is impaired or who does not speak English. Defines qualifications for court interpreters and Metropolitan Police Department interviewers. 28 U.S.C. §1827 is the federal counterpart to this statute. See Gonzalez v. United States, 697 A.2d 819, 824 (D.C. 1997).

D.C. Access to Language Act of 2004 D.C. Official Code §2-1931 et. seq. (2001): 

D.C. Access to Language Act of 2004 D.C. Official Code §2-1931 et. seq. (2001) Mandates that District government agencies, departments, programs and activities must provide language services to limited-English proficiency persons MPD is required to provide language services, both oral and written pursuant to the statute.

INTERPRETING SERVICES: the Fictional Invisibility: 

INTERPRETING SERVICES: the Fictional Invisibility Ensuring the Quality of interpreting Services for the Client

Levels of Certification of Interpreters: 

Levels of Certification of Interpreters State Department certification – requires a level of competence for interpretation at seminars and conferences Federal certification – requires a higher level of interpreter competence, precision and accuracy for interpreters in order to work for the federal courts Interpreters may have certification from a state(s) as well as State Dept. and Federal certification

Qualified Interpreter D.C. Official Code §2-1901(5) (2001): 

Qualified Interpreter D.C. Official Code §2-1901(5) (2001) A qualified interpreter is defined as a person who is listed by the Office of Court Interpreter Services or the United States Department of State or is found by the court to be skilled in the language or form of communication needed to communicate fluently and to translate accurately with the client. Standard for qualification are also based upon the interpreter’s education, training, experience and certification. See Barrera v. United States, 599 A.2d 1119, 1130 (D.C. 1991).

Office of Court Interpreting Services “OCIS” D.C. Official Code §2-1911 (2001): 

Office of Court Interpreting Services “OCIS” D.C. Official Code §2-1911 (2001) D.C. Official Code §2-1904 requires the court to make a preliminary determination of the interpreters qualifications. OCIS screens and assesses interpreters’ skills before interpreters names will be included on the court’s roster. The trial court can rely on OCIS’s preliminary assessment of an interpreter’s ability to translate as a sufficient inquiry into the interpreters ability. See Ko v. United States, 722 A.2d 830 (D.C. 1998)

Office of Court Interpreting Services “OCIS” D.C. Official Code §2-1911 (2001) (cont’d): 

Office of Court Interpreting Services “OCIS” D.C. Official Code §2-1911 (2001) (cont’d) Established under the Interpreter Act to facilitate the use of interpreters in administrative, judicial and legal proceedings in the District of Columbia. Fees, salaries, expenses and costs for interpreting services will be paid by OCIS. Interpreters cannot be in the employment of any other agency while serving as court interpreters. See Ko v. United States, 722 A.2d 830 (D.C. 1998).

Office of Court Interpreting Services “OCIS” D.C. Official Code §2-1911 (2001) (cont’d): 

Office of Court Interpreting Services “OCIS” D.C. Official Code §2-1911 (2001) (cont’d) The Office of Court Interpreting Services is the functional equivalent Office of Interpreter Services for purposes of the Interpreter Act. See Mesa v. United States, 875 A.2d 79, 90 (D.C. 2005).

Interpreter Code of Ethics: 

Interpreter Code of Ethics DC Superior Court follows the manual, Court Interpretation: A Manual for Judicial Officers, Attorneys, Interpreters, and Court Staff in the Superior Court of the District of Columbia (July 1995) Requires that interpreters be neutral and detached from proceedings. D.C. Official Code §2-1908 (2001) provides that privileged communications made through an interpreter also extend to the interpreter.

Interpreter Code of Ethics (cont’d): 

Interpreter Code of Ethics (cont’d) D.C. Official Code §1907 (2001) requires that the interpreter take an oath or affirmation that s/he will make a true interpretation in an understandable manner with the person for whom the interpreter is appointed to the best of that interpreter’s skills and judgment. Please review National Association of Judiciary Interpreters and Translator’s Code of Ethics and Professional Responsibilities at www.najit.org/ethics.html

Signs of a Good Interpreter: 

Signs of a Good Interpreter Note-taking is an essential part of the interpreter’s translation services. Interpreter should translate words verbatim without paraphrasing. Interpreter will not attempt to form bonds with the client and/or witnesses while providing interpreting services. Interpreter will ask for a moment to consult with other interpreters if they are unsure of a terms.

RIGHT TO INTERPETER UPON ARREST : 

RIGHT TO INTERPETER UPON ARREST CLIENT’S RIGHTS AT THE POLICE STATION

INTERPRETER REQUIRED D.C. Official Code §2-1902 (e) (2001): 

INTERPRETER REQUIRED D.C. Official Code §2-1902 (e) (2001) Some non-citizen clients have a limited English proficiency (“LEP”) or hearing impaired and may not be able to fully understand their rights, nor their situation at the time of arrest. The statute requires that the arresting officer procure a qualified interpreter to translate or interpreter information during custodial interrogation, warning, notification of rights, and statements (oral and written).

INTERPRETER REQUIRED D.C. Official Code §2-1902 (e) (2001) (cont’d): 

INTERPRETER REQUIRED D.C. Official Code §2-1902 (e) (2001) (cont’d) A qualified interviewer can also conduct custodial interrogation, warnings, notification of rights, or taking oral and written statements. D.C. Code §2-1901(6) defines a qualified interviewer as a person who is certified by MPD or is found by the court to be, skilled in the language or form of communication needed in order to communicate with the client.

INTERPRETER REQUIRED D.C. Official Code §2-1902 (e) (2001) (cont’d): 

INTERPRETER REQUIRED D.C. Official Code §2-1902 (e) (2001) (cont’d) No statement, answer or admission (written or oral) made by the client in response to custodial interrogation will be used against the client in any criminal or delinquency proceeding unless the statement, answer or admission was made through a qualified interpreter or qualified interviewer. Response must be made knowingly, voluntarily, and intelligently.

Right Against Self-Incrimination: 5th Amend. Privilege for Immigration Status: 

Right Against Self-Incrimination: 5th Amend. Privilege for Immigration Status The Metropolitan Police Department maintains an official policy of not inquiring into immigration status. See Statement Clarifying MPD Policy with Respect to Collaboration with Federal Immigration Authorities, June 6, 2005 at mpdc.dc.gov. However, some law enforcement agents will call ICE if they have reason to believe that the client is not a US citizen.

Valid Waiver of Interpreter Rights D.C. Official Code §2-1906 (2001) et. seq.: 

Valid Waiver of Interpreter Rights D.C. Official Code §2-1906 (2001) et. seq. A communication-impaired person can make a waiver of qualified interpreting services. The waiver must be written and oral on the record following a consultation with the person’s attorney, or if the person does not have an attorney, then the waiver must be in writing in the client’s language and approved by the appointing authority.

Valid Waiver of Interpreter Rights D.C. Code Official §2-1906 (2001) et. seq. (cont’d): 

Valid Waiver of Interpreter Rights D.C. Code Official §2-1906 (2001) et. seq. (cont’d) OCIS is sufficient to satisfy the statutory requirement of the Interpreter Act’s Office of Interpreter Services. See Mesa v. United States, 875 A.2d 79, 90 (D.C. 2005). ASL client spontaneous statements were not subject to the Interpret Act and constituted a valid waiver under the statute. See Mesa at 93-94.

PRE-TRIAL INTERPRETER ISSUES: 

PRE-TRIAL INTERPRETER ISSUES Making Sure That Your Client Understands the Court Process

Interpreting Services for the Preparation of the Defense: 

Interpreting Services for the Preparation of the Defense D.C. Official Code §2-1902(b) (2001) provides that in cases in which counsel has been appointed to represent an indigent defendant who is communication-impaired, a qualified interpreter should be appointed to assist in communication with counsel in all phases of the preparation and presentation of the case.

Establishing a Relationship: 

Establishing a Relationship Defense counsel should seek to establish a relationship of trust and confidence with the client and should discuss the objectives of representation with the client. Defense counsel should explain the necessity of full disclosure of facts with the client for an effective defense. Defense counsel should discuss confidentiality with the client regarding privileged disclosures. See ABA Standards for Criminal Justice, Lawyer-Client Relationship, Standard 4-3.1(a) (4th ed. 2002).

Attorney-Client Privilege and Its Extension to Interpreters: 

Attorney-Client Privilege and Its Extension to Interpreters D.C. Official Code §2-1908 (2001) provides that any privileges held by the communication-impaired person will also extend to the interpreter who translates those privileged communications.

Duty to Keep Clients Informed of the Court Proceedings: 

Duty to Keep Clients Informed of the Court Proceedings Defense counsel has a duty to keep the client informed of all developments in the case and the progress of preparing the case. Defense counsel should explain developments in the case so that the client can make informed decisions. See ABA Standards for Criminal Justice, Lawyer-Client Relationship, Standard 4-3.8 (4th ed. 2002).

Duty to Keep Clients Informed of the Court Proceedings (cont’d): 

Duty to Keep Clients Informed of the Court Proceedings (cont’d) Defense counsel should make sure that client has the forms and documents in the case translated into his or her language as part of keeping the client informed. Be mindful to use a qualified interpreter, if possible, in order to interpretations of court documents and transcripts for best results. See ABA Standards for Criminal Justice, Lawyer-Client Relationship, Standard 4-3.8 (4th ed. 2002).

Accuracy in Transcriptions: 

Accuracy in Transcriptions Transcripts of videotapes and/or court hearings may reveal problems with the quality of interpreting services. Be aware that persons who are not qualified interviewers or interpreters, may use English terminologies and phrases when interpreting that may not translate into the client’s native language, i.e. “Spanglish”, “Kitchen Spanish”, different dialects, etc.

INVESTIGATING THE CASE: 

INVESTIGATING THE CASE Tips for Effective Investigation When Your Witnesses Don’t Speak English and Non-citizen Witness Issues

Understanding Cultural Issues: 

Understanding Cultural Issues Cultural issues can often complicate with some clients can make the process of representing an LEP client even more difficult. Be mindful that non-verbal messages can be even more potent than verbal messages, such as eye contact or lack thereof. There may be culturally- related dynamics between the client and witnesses that defense counsel may not be fully aware such as human trafficking, domestic violence issues, gang issues, etc. that may be of importance to the criminal case.

Understanding Cultural Issues (cont’d): 

Understanding Cultural Issues (cont’d) Clients and/or witnesses may be skeptical of the criminal justice system because of negative experiences and problems with criminal justice systems in their home countries. Clients and/or witnesses may be wary of involvement in a criminal case due to fears of adverse immigration consequences, especially if these persons are undocumented.

Hazards of Interviewing Client and Witnesses with an Qualified Interpreter (cont’d): 

Hazards of Interviewing Client and Witnesses with an Qualified Interpreter (cont’d) Be mindful that the client may not be as forthcoming with information in his/her communications with you if s/he has to reveal embarrassing or sensitive information to you through a relative or friend who is serving as an interpreter. Using the client’s relative(s) and friend(s) to interpret may breach confidentiality and the attorney-client privilege. These persons can become potential gov’t witnesses as a result of their use as a translator.

Slide35: 

HOW DO I INVESTIGATE WHETHER OR NOT THE WITNESS A NON-CITIZEN? Go to the Homeland Security website - http://www.dhs.gov/dhspublic/. Click on 'Contact Us'. On the bottom of the next page click, on the pull-down menu which says “Pick a Category” and then click on “Immigration.” This prompt will send you to a page where you enter in your name, email, and type a message to the DHS stating the reason for the request. For this message, write a simple message along the lines of “looking for immigration information for a witness in a criminal case.” Leave your contact info as well. With the witness‘s first and last names and date of birth, ICE can provide you with the witness’s information within 48 hours, including immigration status.

Visas for Government Witnesses: 

Visas for Government Witnesses There are various visas available to non-citizens who assist law enforcement with criminal investigations and/or prosecutions. These visas are issued through the Dept. of Homeland Security’s US Citizenship and Immigration Services Bureau. These applications, including endorsements of the applications from prosecutors and law enforcement agents, are not accessible to the public.

Visas for Government Witnesses (cont’d.): 

Visas for Government Witnesses (cont’d.) Sec. 384 of IIRAIRA prohibits the disclosure of application information to anyone other than officials and employees within the Dept. of Justice. Brady information regarding gov’t witnesses receiving these visas as a result of their cooperation in criminal investigations and prosecutions is statutorily withheld from accused clients and their criminal defense attorneys. Therefore, an in camera inspection may be required by the court before that information can be revealed to you.

Visas for Government Witnesses (cont’d.): 

Visas for Government Witnesses (cont’d.) In any event, include requests for this type of information regarding immigration assistance in your Rosser letters and discovery requests. File motions for an in camera inspection if you have a good faith basis to believe that a non-citizen witness has received an immigration benefit from the gov’t or law enforcement agents.

Investigative Resources for Cases with LEP Clients and Witnesses: 

Investigative Resources for Cases with LEP Clients and Witnesses Check with the Office of Court Interpreter Services for obtain contact information for qualified interpreters who do free lance work. Interpreters can provide interpreting services for detained clients at the DC Jail and at CTF. Interpreter can interpret witness interviews and statements.

Hazards of Interviewing without Qualified Interpreters : 

Hazards of Interviewing without Qualified Interpreters Not all persons who are fluent in a language can accurately interpret client and witness statements. Be mindful of ethnic and cultural issues when selecting an interpreter to assist your with the investigation as cultural biases can play a large role in interpreting services and the accuracy in translation.

TRIAL INTERPRETER ISSUES: 

TRIAL INTERPRETER ISSUES Protecting Your Client’s Rights at Trial

Constitutional Challenges under the Interpreter Act: 

Constitutional Challenges under the Interpreter Act D.C. Official Code §2-1902(e) (2001) provides a communication-impaired client with constitutional protections when taken into custody by law enforcement official in the District of Columbia. Attorneys should file suppression motions when a communication-impaired client makes statements while in custody without a qualified interpreter or interviewer present and/or in the absence of a valid written waiver.

Constitutional Challenges under the Interpreter Act (cont’d): 

Constitutional Challenges under the Interpreter Act (cont’d) The D.C. Court of Appeals declined to extend the Interpreter Act to consent to search and statements uttered while the communication-impaired client is not in custody. See Castellon v. United States, 864 A.2d 141 (D.C. 2004); see also Mesa v. United States, 875 A.2d 79, 91 (D.C. 2005); see also Morales v. United States, 866 A.2d 67. The D.C. Court of Appeals also found that MPD officers who speak a client’s native language can obtain voluntary consent to search. See Castellon v. United States, 864 A.2d 141, 155 (D.C. 2004).

Constitutional Challenges under the Interpreter Act (cont’d): 

Constitutional Challenges under the Interpreter Act (cont’d) The gov’t cannot use statements elicited in violation of D.C. Official Code §2-1902(e)(2001) in it’s case-in-chief. See Barerra v. United States, 599 A.2d 1119, 1131 (D.C. 1991). However, statements elicited in violation of D.C. Official Code §2-1902(e)(2001) can be used to impeach a client at trial provided that the gov’t can establish that there are sufficient guarantees of trustworthiness in the elicited statements. See Barerra at 1132-1133.

D.C. Super. Ct. Crim. R. 28 (b): 

D.C. Super. Ct. Crim. R. 28 (b) This statute provides that the court with discretion to appoint an interpreter. Compensation for the interpreter shall be paid through DC Superior Court. The trial court has the discretion to refuse to appoint an interpret if it finds that the client and/or witness has a sufficient proficiency in English and that the lack of an interpreter would not infringe upon the client’s right to confront witnesses at trial. See Q.L.J., 458 a.2d 30, 31-32 (D.C. 1982).

D.C. Super. Ct. Crim. R. 28 (b) (cont’d): 

D.C. Super. Ct. Crim. R. 28 (b) (cont’d) The review of the competence of the interpreter is entrusted to the trial court and will only be reviewed on appeal for abuse of discretion. Gonzalez v. United States, 697 A.2d 819, 824-825 (D.C. 1996). The court should always make a preliminary determination about the interpreter’s qualification and ability to communicate with the client and accurately translate before appointing that interpreter. See D.C. Official Code §2-1904 (2001).

Rules of Evidence: 

Rules of Evidence Rule of Evidence 604 provides that an interpreter is subject to rules of evidence relating to the qualification of an expert and the administration of an oath or affirmation to make a true translation. Rule of Evidence 706 provides that interpreters, as court-appointed experts, will be appointed by the court only if the court deems such an appointment is necessary. See In re Q.L.J., 458 a.2d 30, 32 (D.C. 1982).

Right to Confront Witnesses: 

Right to Confront Witnesses A client’s right to present a defense and confront witnesses cannot be impeded by an unduly restrictive time limit on cross-examination, even in cases in which the court interpreter’s time is limited. See Flores v. United States, 698 A.2d 474, 480 (D.C. 1997). The court had no basis to limit cross-examination because of time-consuming complications with the use of an interpreter without a proffer from the defense as to the questions to be asked beforehand. Id.

Challenging an Interpreter at Trial: 

Challenging an Interpreter at Trial The defense must make the trial court aware of any difficulties with the translator during trial. See Ramirez v. United States, 877 A.2d 1040, 1044 (D.C. 2005). Defense counsel may challenge an interpreter based upon that interpreter’s qualifications. See Ko at 835. Defense counsel can challenge interpreters on their possible bias against the client. See Ko at 836.

Challenging an Interpreter at Trial (cont’d): 

Challenging an Interpreter at Trial (cont’d) Defense counsel must also give particular care to the accuracy of translated testimony at trial. See Ramirez at 1045. The competency of the interpreter is left in the discretion of the trial court. See Ramirez at 1044.

Waivers and Objections to Interpreter Services at Trial: 

Waivers and Objections to Interpreter Services at Trial Defense counsel must raise objections to the interpreter’s qualifications, or lack thereof, at trial or those objections will be waived if they are not raised in a timely fashion at trial. See Redman v. United States, 616 A.2d 336, 338 (D.C. 1992); see also Gonzalez v. United States, 697 A.2d 819, 823 (D.C. 1997). Defense counsel must make objections during trial if the court fails to verify an interpreter’s qualifications. See Gonzalez at 822.

Waivers and Objections to Interpreter Services at Trial (cont’d): 

Waivers and Objections to Interpreter Services at Trial (cont’d) The defense must make objections to inadequate interpretations or interpreter errors during trial or those objections will be waived. See Gonzalez at 823. D.C. Official Code §2-1906 (2001) provides that a client can make an affirmative waiver of interpreting services pursuant to the Interpreter Act.

Bias Issues at Trial: 

Bias Issues at Trial Interpreters may have bias because of their employment or social reasons, and the potential bias should be raised with the court during trial. See Ko at 835-836. However, the DC Court of Appeals has found that the function of an interpreter is a ministerial one and that interpreters are not advocates for any one party or position. See Dang v. United States, 741 A.2d 1039, 1044-1045 (D.C. 1999); see also Ko at 835-836.

Bias Issues at Trial (cont’d): 

Bias Issues at Trial (cont’d) Judges can be biased because of a client’s ethnic origin or nationality and should recuse themselves if such an issue arises at trial. See Mejia v. United States, 916 A.2d 900 (D.C. 2007). Use voir dire as an opportunity to discover bias issues in potential jurors such as bias against non-citizens and/or bias against the use of interpreters for witnesses and/or client who have a limited-English proficiency.

Multi-Defendant Trials with One Interpreter: 

Multi-Defendant Trials with One Interpreter As a matter of law, co-defendants are not entitled to an individual interpreter if the use of a single interpreter during a co-defendant action meets the purposes of interpretation law. See Dang v. United States, 741 A.2d at 1045. Appropriate use of interpreters is a matter within the court’s discretion as long as the court ensures that each defendant understands the proceedings. See Dang at 1045.

Multi-Defendant Trials with One Interpreter (cont’d): 

Multi-Defendant Trials with One Interpreter (cont’d) Ideally, there should be at least a team or two or more interpreters to provide interpreting services at trial. Defense counsel and the court must remain aware that interpreter fatigue can result in a loss of accuracy if the sole interpreter in a trial is not provided with adequate assistance and/or rest breaks.

POST-TRIAL INTERPRETER ISSUES: 

POST-TRIAL INTERPRETER ISSUES Protecting Your Client’s Rights Post-trial

Interpreter Services for Pre-Sentence Reports: 

Interpreter Services for Pre-Sentence Reports Client should be provided with an interpreter at the time of the pre-sentence report interview. Client should be provided with a copy of the pre-sentence report translated into his/her native language. The right to a qualified interpreter continues throughout the proceedings.

Sentencing: 

Sentencing Client is entitled to an interpreter pursuant to D.C. Official Code §2-1902 (2001) et. seq. of the Interpreter Act at the time of sentencing. Client should have reviewed that translated documents, such as the PSI report and the sentencing letter, before the time of sentencing.

Appellate Issues with Interpreters: 

Appellate Issues with Interpreters Defense counsel must raise any issues involving the competence of an interpreter during a trial only on direct appeal, not on collateral attack, in order to place the issue properly before the DC Court of Appeals for review. See Wu v. United States, 798 A.2d 1083, 1090 (D.C. 2002).

CONSULT! CONSULT! CONSULT!: 

CONSULT! CONSULT! CONSULT! Please email or call me with your immigrant defense questions and concerns!!!! Room 351 in 633 Indiana Bldg. Gwashington@pdsdc.org 202-824-2527

Contact Information for Panelists: 

Contact Information for Panelists Mona Asiner, Staff Attorney, DC Public Defender Service Masiner@pdsdc.org 202-824-2417 Gladys Segal, Certified Court Interpreter, Seagull International Gseagull@aol.com 301-530-0845 Teresa Salazar, Director of Interpreting Services for the US District Court for the District of Columbia Teresa_C._Salazar@dcd.uscourts.gov 202-354-3016 Isabel Laguzzi, Language Specialist, DC Public Defender Service Ilaguzzi@pdsdc.org 202-824-2758

THANK YOU!: 

THANK YOU!

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