Jesus Arrieta   1-9   SCrt – CJ Shepard
(Judge Cecile A. Blau, Clark Superior Court, affd. [sort of] on interlocutory appeal )

  1. Solvent defendant failed to establish a record of need for a court-appointed defense interpreter. (Record only established that he posted a $50,000 bond and hired a private attorney).  However, trial court must provide  proceedings interpreter. 

    2. A.   DEFENSE INTERPRETERS benefit the non-English-speaking defendant by simultaneously translating the English proceedings and assisting with attorney-client communication.  The non-English speaking defendant relies on this interpreter to understand the trial, communicate with their attorney, and communicate with the court.      
    B.  PROCEEDINGS INTERPRETERS serve the whole court by translating the speech of participants at various junctures.  They assist both sides, the court, and fact finder, and help create a proper record for appellate review.    
               

  2. Trial courts must continue to supply interpreters at public expense for indigent criminal defendants.  But it’s an open question whether trial courts need to supply two interpreters, or if a proceedings interpreter may also serve as the defense interpreter for these indigent defendants.  The former approach appears to be better practice, and this case may signal the beginning of a new approach in this area. 
  3. Given changed financial circumstances, nothing in this opinion would prevent the defense from seeking a second hearing to determine indigency for defense interpreter purposes.  If non-English-speaking witnesses testified during that hearing, the Court must provide a proceedings interpreter.  This case illustrates the importance of making a thorough record of need at a hearing where a court appointed defense interpreter is sought, because the burden is on the defense.  One can imagine that upon paying $5,000 to a bondsman, and retaining a private attorney in an A felony drug case, that the defense would have to present some pretty compelling facts of indigency, before a trial court would be forced to pay for a defense interpreter.  Again, the court must always, regardless of indigency, provide a proceedings interpreter when non-English- speakers testify in court.  Further, given tight budgets, the parties probably have a duty to communicate with the court concerning the need for an interpreter, before the court’s duty to provide one is triggered.              
  4. Also, if the defense pays for a private defense interpreter, it would seem inappropriate, in light of privilege and other considerations, for the court to press that person into service as a proceedings interpreter.  While proceedings interpreters probably could serve as defense interpreters; defense interpreters probably should not be forced into service as the proceedings interpreter.   

           
FACTS:  A non-English speaking defendant posted a $50,000 bond and hired a private attorney who appeared at the initial hearing where an interpreter was present on an A felony drug charge.  At this initial hearing, with interpreter present, the charges were explained to the defendant, his constitutional rights were reviewed, and court/trial dates were set.  The defense subsequently requested a court-funded “defense” interpreter for all remaining proceedings.  The court declined to pay for these services absent a showing of indigency.”  The Court of Appeals affirmed on interlocutory appeal. 

DISCUSSION:
This opinion first documents the need to establish a statewide court interpreter system to assist judges in providing genuinely qualified interpreters in Indiana.  Due to this need, Indiana with assistance, devised a program to train, test, and certify Spanish interpreters, which today recognizes fifty-two certified Spanish interpreters.”  These interpreters are sworn to a code of conduct.  The program permits certification by reciprocity. 
“The Indiana General Assembly has appropriated funds to assist courts in engaging qualified interpreters, especially in Spanish, and the Supreme Court opened an account with ‘Language Line Services’ for telephone interpretation.  Language line is an over-the-phone interpretation service based in Montery, California, which provides interpreting of more than 140 languages, every day of the year, around the clock.  Our trial courts have used Language Line interpreters to assist people who spoke French, Somalian, Russian, Mongolian, Yeman, Korean, and Mextaco (a Mexican regional dialect).”

DEFENSE INTERPRETERS:
Defense interpreters help non-English-speaking defendants understand the trial, communicate with their attorney, and communicate with the court.  Conducting a trial with a proceedings interpreter, but no defense interpreter, threatens many rights.  Some fundamental due process rights put at risk are:

  1. the defendant’s right to participate in his own defense
  2. right to confrontation
  3. right to be present at trial, and
  4. right to counsel.

The Supreme Court held more than fifteen years ago that, ”[a]n indigent defendant who cannot speak or understand English has the right to have his proceedings simultaneously translated to allow for effective participation.”  citation omitted.  “We reaffirm this holding today.  It is axiomatic that a non-English-speaking criminal defendant’s rights cannot be preserved without the assistance of what we have termed a ‘defense interpreter.’”
“Our Court of Appeals has thoughtfully examined how trial courts should undertake to decide whether to appoint such interpreters.”
A trial court is put on notice that an interpreter is needed when the defendant manifests a significant language difficulty, or when an interpreter is specifically requested.  Factors to be considered are:

a. the defendant’s understanding of spoken and written English
b. the complexity of the proceedings, issue and testimony
c. whether the defendant will be able to participate effectively in his defense, and now
d. the defendant’s ability to pay.   

Absent such indications, however, the court is under no obligation to inquire into the defendant’s need for an interpreter.’  citation omitted.  

PROCEEDINGS INTERPRETERS:  In criminal cases it’s hard to pin down exactly when a  proceedings interpreter is necessary.  Some examples of necessity are an initial hearing, indigency proceeding, or bond review where the defendant is non-English-speaking.  Another example is taking  testimony from any non-English-speaking witness. A witness translation request can come from either side.  The prosecution may hinge upon the testimony of a non-English speaking witness.  Conversely, the sole exonerating evidence might come from a non-English speaker as well.  Denying the defendant the right to present such evidence interferes with is right to present a case.  The proceedings  interpreter serves the whole court, and it would be impossible to make an adequate record without them. 

1 OR 2 INTERPRETERS? 
Trial courts are to use sound judgment to find solutions as they face various scenarios involving interpretation needs in this evolving environment.  This opinion does not decide if one interpreter can serve as both the defense and witness interpreter in the same proceeding, or if more than one interpreter may sometimes be necessary.  We have laid out these distinct roles to alert trial courts of the need to ensure that they are both filled, to protect the rights of the parties and the integrity of the fact-finding process.   

WHO PAYS? – A SPLIT OPINION  
There’s legislative guidance for civil cases and indigent defendants, but none for solvent defendants who need a defense interpreter. Solvent defendants can be required to pay for defense interpreters.  However, the court must provide a (court-funded) proceedings interpreter to translate any non-English testimony.