LEGAL ANALYSIS ⁶

When people are unable to comprehend or participate fully in court proceedings in which they are parties, fundamental notions of justice and fairness are called into question. Substantial legal authority exists to support the proposition that the U.S. Constitution, and the Civil Rights Act of 1964, 42 U.S.C. §2000d et seq., obligate the states to provide comprehensive language services to make the court system accessible to LEP persons. This obligation is particularly compelling when LEP individuals are forced to participate in court proceedings.

The well-established rights of a criminal defendant to a fair trial may be compromised when a court conducts proceedings in a language not well-understood by the defendant. The right to an interpreter in criminal matters is based upon the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution. If the state fails to provide an interpreter when one is needed, the situation jeopardizes the broad Fifth Amendment right not to be deprived of life or liberty without due process of law; the more specific Sixth Amendment rights of a criminal defendant to counsel, to a speedy trial, to be informed of the charges against him, and to confront adverse witnesses; and the Fourteenth Amendment rights to due process and equal protection of the law. In concluding that failure to provide an interpreter undermines the rights of a defendant to confront witnesses and to testify on his own behalf, for example, the First Circuit noted that “no defendant should face the Kafkaesque specter of an incomprehensible ritual which may terminate in punishment.” United States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973). Indeed, the Pennsylvania Supreme Court previously has recognized the importance of interpreters. See Commonwealth v. Pana, 469 Pa. 43, 364 A.2d 895 (1976). (The conviction was reversed after the trial judge improperly refused to permit the defendant to testify in Spanish through an interpreter, thereby interfering with his right to testify.)

Language issues arise in various ways throughout the criminal process. The right to counsel may be denied when a defendant and his or her counsel cannot communicate clearly and lack an interpreter to bridge language differences. The difficulty may begin at the time that counsel is appointed or retained, and may continue throughout the pretrial, trial, and post-trial process. When a written translation of the charging documents has not been made, the defendant may not be adequately informed of the charges against him and may thus be unable to participate in his own defense. United States v. Mosquera, 816 F.Supp. 168 (E.D.N.Y. 1993). Also, a defendant who is not provided with simultaneous interpretation of witness testimony during trial may lose the right to cross-examine the witness effectively. Whenever language services are needed, the failure to provide interpretation or translation by individuals with sufficient language skills and training may create an issue as to whether the right has been adequately protected.

The Federal Court Interpreters Act, 28 U.S.C. §1827, mandates for all federal criminal proceedings the use of certified or otherwise qualified interpreters for people who primarily speak a language other than English. Many states have enacted similar statutes, rules, or state constitutional amendments mandating the appointment of court interpreters for LEP defendants in criminal cases.

Constitutional principles can also apply to civil and administrative proceedings, although precedent in these areas is less firmly established than in criminal cases. Fundamental due process and equal protection rights grounded in the Fifth and Fourteenth Amendments are implicated when an individual is threatened with loss of property interests in court, or is denied access to court for enforcement of legal rights on the grounds of his or her ability to speak or write well in English. (See i.e., Gonzalez v. Commonwealth, Unemployment Comp. Bd. of Review, 39 Pa. Cmwlth. 70, 395 A.2d 292 (1978).) (The dissent found that failure to provide simultaneous interpretation of adverse witness testimony during an administrative hearing deprived claimant of equal protection and due process.) Non-criminal proceedings can adjudicate critical legal matters such as protection from abuse, child custody, support, and divorce; dependency, termination of parental rights, and adoption; eviction and housing or health code enforcement; mortgage foreclosure; and eligibility for unemployment compensation, worker’s compensation, mortgage assistance, and welfare benefits. Claims for damages represent potential gain or loss of money, property, and assets. Concerns should be heightened when an LEP defendant is involuntarily summoned to court and may suffer loss of significant property or other interests. Fundamental fairness suggests that when important interests are at stake, the court should level the playing field, at least to the extent of permitting both sides to understand and participate in proceedings without regard to English language ability.

In 1997, the American Bar Association also adopted a resolution that “recommends that all courts be provided with qualified language interpreters in order that parties and witnesses…may fully and fairly participate in court proceedings.”

—ABA Resolution, Rep. No 109 (adopted Aug. 1997)

ENDNOTES

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⁶ The Committee relied heavily upon Kathleen M. Sullivan, A Judge’s Handbook on Immigration Law and Related Materials (Chicago: American Bar Association 2001), particularly Chapter 14 therein, “Court Interpreters: Appointment, Qualification and Effective Utilization,” as updated by Sarah Paoletti, Esq., Friends of Farmworkers, Inc.

⁷ Executive Order 13166, 65 F.R. 50121 (August 16, 2000) <http://www.usdoj.gov/crt/cor/Pubs/eolep>. 

⁸ 67 F.R. 4968 (February 1, 2002) <http:www.hhs.gov/ocr/>. 

HHS’s Office for Civil Rights notes:

Title VI prohibits discrimination in any program or activity that receives Federal financial assistance. What constitutes a program or activity covered by Title VI was clarified by Congress in 1988, when the Civil Rights Restoration Act of 1987 (CRRA) was enacted. The CRRA provides that, in most cases, when a recipient/covered entity receives federal financial assistance for a particular program or activity, all operations of the recipient/covered entity are covered by Title VI,not just the part of the program that uses the federal assistance. Thus, all parts of the recipient’s operations would be covered by Title VI, even if the federal assistance is used only by one part.

U.S. Department of Health and Human Services, Office for Civil Rights, Policy Guidance Title VI Prohibition Against National Origin Discrimination As It Affects Persons With Limited English Proficiency, Part C.1. (September 1, 2000). See extensive discussion at Part B thereof as to the legal authority under Title VI for the HHS guidance. 

Department of Justice Republished Guidance, 67 F.R. 41455 (June 18, 2002).

⁹ The Department of Labor LEP Policy Guidance, 66 F.R. 4596 (January 16, 2001) <http://www.usdoj.gov/crt/cor/lep/dollep.htm>.

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