Constance Emerson Crooker is a sole practitioner in Portland, OR. ©1998 by Constance Emerson Crooker, all rights reserved.
Attorneys who need interpreters for their non-English speaking clients should find this checklist handy for use in federal cases. Be aware that local procedures in some federal districts may violate the Court Interpreters Act, so attorneys cannot always rely on established procedures. The provisions which follow are not suggestions, they are laws. In recognition of the court interpreter's role in helping our clients fully participate in the proceedings, we should obey these mandates, and insist that the courts obey them whenever we use interpreters.
1. To Qualify For An Interpreter: Your client may qualify for a court-appointed interpreter in any judicial proceeding initiated by the United States. This includes criminal and civil proceedings, and pre-trial, grand jury, and habeas corpus proceedings. 28 U.S.C. 1827 (d)(1) and (j).
Your client qualifies for an interpreter if the client or a witness speaks only, or primarily, a language other than English so as to cause at least one of these three problems: inhibition of the party's comprehension of the proceedings, inhibition of the party's communication with counsel or the judge, or, in the case of a witness, inhibition of the witness' comprehension of questions and presentation of testimony. 28 U.S.C. 1827 (d)(1).
2. To Get An Interpreter: For a federal court proceeding, call the court clerk's office in advance. Technically, the presiding judge appoints the interpreter, but it is, in fact, the clerk who keeps the interpreter roster and handles the scheduling. 28 U.S.C. 1827(d)(1), and Interim Regulations of the Director of the Administrative Office of the United States Courts Implementing the Court Interpreters Amendments Act of 1988, Part V, 11.
For out-of-court use of an interpreter, proceed as you would with any outside service provider. Attorneys for indigent defendants should petition for pre-authorization of the interpreter's fees.
3. Court Clerk Must Assign Certified Or Qualified Interpreter: The court clerk is required to maintain a roster of certified, professionally qualified and language skilled interpreters. Interim Regs, Part V, 11. Certified interpreters are those who have passed intensive language and performance examinations administered by the federal courts. Professionally qualified interpreters are those who have not passed the exam, but have met listed requirements. Language skilled interpreters are those who have demonstrated to the court their ability to interpret into and out of the target language. See definitions at Interim Regs, Part III, Sections 7, 8, and 9. When a certified interpreter is not locally available, the clerk must first seek the services of one from another district, and must pay travel and subsistence costs if necessary. Interim Regs, Part V, Sections 12 (b) and (c). If no certified interpreter is reasonably available, the clerk must choose, first, a professionally qualified interpreter, and if none is reasonably available, a language skilled interpreter. 28 U.S.C 1827 (d)(1), and Interim Regs, Part V, 12 (d) and (e).
Federal Rules of Evidence Rule 604 also requires an interpreter to be qualified as an expert under Federal Rules of Evidence Rule 702. This rule requires an expert to be qualified by "knowledge, experience, training and education." These provisions predate the Court Interpreters Act, but are still in effect.
4. Waiver: The Court Interpreters Act contains provisions for waiver of these rights, but once the right attaches, the waiver must be express, on the record, and made through the services of a certified interpreter, or, where none is reasonably available, an otherwise qualified interpreter. 28 U.S.C. 1827 (f)(1).
5. Prepare The Interpreter For The Case: Before the proceedings begin, give the interpreter case information, including a summary of expected testimony, and a copy of any relevant documents which the interpreter will be expected to translate. This helps the interpreter comply with the ethical responsibility to interpret accurately and faithfully, as required by Canon 8 of the Code of Professional Responsibility of the Official Interpreters of the United States Courts.
If an expert witness will be using specialized vocabulary, notify the interpreter in advance, because even skilled interpreters may be deficient in technical terms. This helps the interpreter comply with Canon 11 of the Code, which requires the interpreter to refuse any assignment for which he or she is not qualified.
6. Assure Interpreter And Client/Witness Can Fully Communicate: Before the proceedings begin, have the interpreter engage in casual conversation with the non-English speaking client or witness to assure that they understand each other. Assure yourself that their communications are not impeded by differences in dialect. The Act mandates that the judge dismiss any interpreter who is unable to communicate effectively with the defendant or witness. 28 U.S.C. 1827 (e)(1).
7. Assure Interpreter Communicates Effectively In English: Make sure the interpreter's English can be understood. Watch out for accents which are so thick that they impede communications. The Act mandates dismissal of an interpreter who cannot communicate effectively with the court and counsel. 28 U.S.C. 1827 (e)(1).
8. Tell The Jurors About The Interpreter's Role: Oregon has a useful jury instruction which is read at the start of trials where interpreters are used. It tells the jurors about the role of an interpreter. See Oregon's Uniform Criminal Jury Instruction No. 1001A, "Use of an Interpreter." This instruction allays potential prejudice against partial English speakers, because the instruction stresses that a person who speaks some English, but does not speak it fluently, has the right to an interpreter.
9. Qualify The Interpreter On The Record: You should make sure the record reflects the interpreter's name, and reflects whether the interpreter is federally certified, professionally qualified or language skilled. If the interpreter is professionally qualified or language skilled, make sure the record shows why a certified interpreter was not used.
10. Assure That The Court Administers The Statutorily Required Oath: The interpreter must swear or affirm to make a true translation. Fed. R. Evid. 604.
11. Learn The Interpreter's Duties Yourself: You should review the Interpreter's Code of Professional Responsibility so you will understand what is required of the professional with whom you are working. See also, Crooker, The Art of Legal Interpretation, A Guide for Court Interpreters for information on the different methods of interpretation and how to spot the 15 most common interpreter errors.
The Court Interpreters Act, 28 U.S.C. 1827 Interim Regulations of the Director of the Administrative Office of the United States Courts Implementing the Court Interpreters Amendments Act of 1988
Federal Rules of Evidence, Rule 604
Federal Rules of Evidence, Rule 702
Code of Professional Responsibility of the Official Interpreters of the United States Courts.
Oregon's Uniform Criminal Jury Instruction No. 1001A, "Use of an Interpreter."
Crooker, The Art of Legal Interpretation, A Guide for Court Interpreters, Portland State University Continuing Education Press (1996)
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