As Prof. Shea Denning mentioned in her post yesterday, the School of Government and the Conference of District Attorneys jointly presented the Practical Skills for New Prosecutors course last week. In addition to covering relevant criminal law and ethical rules, the program also addressed the nuts and bolts of running a courtroom and moving the docket — complex tasks that present unique challenges of their own.
One issue from the mechanics and procedure realm that caught my attention was a point that came up during the session on courtroom interpreters and other language services. In the hectic and fast-paced world of district court, how should attorneys and the court respond to a person who says that he or she does not want an interpreter, but there is reason to believe that the person may actually need one? Conversely, what about when someone asks for an interpreter, but he or she seems able to communicate adequately without one? What are the standards and guidelines for deciding if an interpreter is required?
Background: Interpreter Policy and Practice
G.S. 7A-343(9c) makes it the duty of the Director of the Administrative Office of the Courts to “prescribe policies and procedures for the appointment and payment of foreign language interpreters,” and to apply those policies and procedures “uniformly throughout the General Court of Justice.” That mission is carried out by AOC’s Office of Language Access Services (“OLAS”), which sets the standards for providing language access services, fulfills requests for interpreter services (both for court personnel and attorneys), establishes the certification requirements and costs for interpreters, and even offers this handy bench card and FAQ for quick reference. The answer to almost any “how to” question related to obtaining courtroom language services can be found in one of those links, and if not, the office can be contacted directly here.
To facilitate “removing barriers that prohibit equal access to justice by individuals with limited English proficiency,” OLAS directs that “[t]he court shall require an interpreter for any court proceeding involving a party in interest who speaks a language other than English as his primary language and has a limited ability to read, speak, or understand English.” Whether it’s viewed as a matter of due process, confrontation rights, equal protection under the law, or open access to our state’s courts, the ability to understand the words that are being said inside the courtroom is pretty easy to defend as a bare minimum requirement for fairness. And not surprisingly, in practice this is rarely an area of much dispute. If a defendant, victim, or witness needs the assistance of an interpreter in order to understand or be understood in a court proceeding, an interpreter should be provided. See Wise v. Short, 181 N.C. 320 (1921) (“It is considered to be among the inherent powers of the court to appoint an interpreter, if necessary for it to be done, in order that the true meaning of the foreign language used by witnesses, or in documents, may be understood by the court and jury.”).
What is sometimes less clear, and more open to debate, is the underlying question of whether a particular person actually needs an interpreter or not? “The decision of whether an interpreter is warranted in a particular case is a decision within the trial judge’s discretion. It will not be reviewed absent a showing of abuse of discretion.” State v. McLellan, 56 N.C. App. 101 (1982). Obviously the court should utilize an interpreter when, for example, a witness’s “normal method of communication is unintelligible to those in the courtroom,” but the case law has also held that courts should refrain from utilizing an interpreter if one is not truly necessary “[b]ecause of the possibility of inadvertent distortion of testimony.” Id.
This is where it gets a little more complicated.
Doesn’t Want an Interpreter, But Might Need One?
One method of distinguishing between proficiency levels of non-native English speakers is to draw a line between Basic Interpersonal Communication Skills (“BICS”) and Cognitive Academic Language Proficiency (“CALP”). Simply put, it’s the difference between: (i) the ability to carry on a casual conversation or engage in limited social interactions; and (ii) and the ability to process and understand complex ideas expressed in that language. A person with only basic communication skills might feel pressured to decline the services of an interpreter and tell the court that he or understands “enough to get by,” even though a more advanced level of cognitive academic proficiency is likely required for court purposes. How should the court decide if an interpreter is needed, despite the person’s stated desire to proceed without one?
If the court has any doubts about the person’s ability to adequately communicate and understand the proceedings, Section 4 of OLAS’s Standards for Language Access Services (2017) recommends a few basic steps that the court can take to determine whether an interpreter is needed. First, rather than asking simple yes or no questions (e.g., “Do you understand English?” or “Do you need an interpreter?”) the court should ask more open-ended questions that force the person to respond in a meaningful way (e.g., “How did you learn to speak English?” or “What do you think the purpose of this court hearing is?”). Additionally, OLAS recommends the court use a qualified interpreter to engage in a colloquy with the person in his or her native language and ensure that the decision to decline an interpreter is being made knowingly, intelligently, and voluntarily, after being advised that the service is available at no cost to the party (during covered proceedings), and after explaining the potential benefits of being able to communicate in the person’s native language. Even if the person persists in declining the services of an interpreter at that time, the court retains the option of appointing an interpreter for the remainder of the proceedings upon request.
In general, OLAS’s position is that “the judicial official should err on the side of caution and provide an authorized court interpreter for a court proceeding if there is any doubt about a person’s ability to read, speak, write, or understand English.” Id., Section 4.4. See, e.g., State v. Sandlin, 61 N.C. App. 421 (1983) (trial court did not err by appointing a Vietnamese interpreter for witness who said she spoke “very little” English).
Wants an Interpreter, But Might Not Need One?
On the other hand, there may be some cases in which the defendant, a witness, or the victim has requested the services of an interpreter, but the court does not believe that an interpreter is necessary. As noted above, if an interpreter is readily available there is little downside to utilizing one anyway, just to be safe. But what if the language at issue is particularly rare, and waiting on an unnecessary interpreter would unreasonably delay the resolution of the case? See, e.g., State v. William, 505 S.W. 3d 344 (Mo. App. 2016) (where defendant was from Micronesia and his native tongue was Pingelapese, an oral-only language spoken by less than 2,000 people in the world, the trial court did not abuse its discretion in finding that his English was good enough to go to trial without an interpreter, even though an interpreter had been used at some earlier proceedings).
Recent North Carolina case law on this issue is pretty limited, but a couple of unpublished cases have reaffirmed that the trial court may exercise its discretion and decline to appoint an interpreter if the judge is satisfied (based on factors such as prior statements, interactions with the court and counsel, responses to direct questions, or the fact that the defendant did not request an interpreter) that the person is able to understand and communicate adequately on his or her own. See, e.g., In re D.I., 204 N.C. App. 595 (2010) (unpublished) (“Moran testified that he spoke “Spanish and a little English; that he understood English “[a] little bit;” and that he spoke to Respondent in English. This evidence, in addition to Moran’s answers upon questioning by DSS, supported the trial court’s conclusion that Moran had a sufficient command of the English language as to not need an interpreter.”); State v. Hassoumiou, 193 N.C. App. 455 (2008) (unpublished) (“Although the trial court had the discretion to appoint an interpreter, Defendant has failed to show the trial court abused its discretion by failing to appoint one, especially given that Defendant failed to request an interpreter and was able to answer intelligibly when directly questioned by the trial court.”).
The Friends and Family Plan?
Finally, what about those cases where a defendant or victim who does not speak English is accompanied by a spouse, friend, sibling or even a child who is bilingual and willing to translate? Again, if the person’s native language is Spanish and a certified court interpreter is readily available, certainly that’s the better option. But as a practical matter, if the defendant simply needs to be told that his court date is being continued to next month, or the victim needs to be given an opportunity to express her opposition to modifying the bond conditions, and the person’s friend/spouse/sibling/child who speaks both English and Pingelapese is standing right there… may the court rely on that volunteer to assist with a translation?
I’m sure that OLAS would ask me to stress (again) what an undesirable option this is, for any number of reasons — lack of training, not tested, not certified, may not appreciate the solemn duty to translate accurately, etc. Nevertheless, there does appear to be some historical authority for allowing the use of such ad hoc interpreters in special cases. See, e.g., State v. McLellan, 56 N.C. App. 101 (1982) (where victim had suffered a childhood injury that caused a speech impediment, and his half-sister “had known and communicated with him since childhood and was able to understand him better than most people,” the trial court’s “appointment of the victim’s half sister as interpreter did not amount to an abuse of discretion;” court also noted that the victim’s half-sister was not a testifying witness in the case so “the potential for her improperly using the interpretation to corroborate her own testimony was not present”); see also State v. Torres, 322 N.C. 440 (1988) (“Any person who is competent to perform the duty assumed may be appointed as an interpreter. The court’s selection of an interpreter will be deemed error only upon a showing of abuse of discretion.”).