Ensuring Equal Access to Justice for Limited English Proficiency Individuals

Clearly, as the scenario above illuminates, interpretation and translation services are essential when providing LEP individuals meaningful access to the courts. The Utah courts’ mission statement asserts that the purpose of the courts is to provide the people an “open, fair, efficient, and independent system for the advancement of justice under the law.”¹ Likely all courts have similar purposes and motivations. Certainly, no court can be open, fair, or even efficient without providing the necessary language services to LEP individuals that enable meaningful access to all facets of the judicial system.

Many courts have implemented LEP policies and programs. Despite these efforts, challenges still exist. This article illustrates areas of success and highlights ongoing concerns in providing equal and fair court services for all LEP individuals.

Limited English Proficiency Individuals

The majority of people living in the United States communicate in English. However, for many others, English is not their first or primary language. An LEP person is someone who speaks a language other than English as his or her primary language and has a limited ability to read, write, speak, or understand English.²

The number of LEP individuals living in the United States has grown significantly over recent years. By some estimates, in 1990 there were just over 10 million LEP individuals in the United States, but by 2013, that number had grown to more than 25 million LEP individuals.³ Robert Peck, president of the Center for Constitutional Litigation, points out that in 2013 there were 60 million Americans who spoke a language other than English in their homes, and, of those, more than a quarter spoke little or no English at all.⁴ The 2000 census data show that more than 26 million individuals speak Spanish and almost 7 million individuals speak an Asian or Pacific Island language at home. While some may speak enough English to participate in their various communities, if they have a limited ability to read, write, speak, or understand English, they are LEP individuals.

Peck notes that “access to the courts” means access to a language that people can understand. He adds that in order to realize the concepts of justice that our Constitution speaks of, the courts must provide competent and effective court interpreters and language services to LEP individuals.⁵ Language for these LEP persons becomes a barrier to court services. They might be limited in their understanding of rights, rules, and their responsibilities.

LEP persons who interact with the courts obviously include parties and witnesses. Additionally, the court should be aware of the language needs of juveniles, detainees, wards, inmates, affiants, recipients of subpoenas, suspects, violators, witnesses, victims, and community crime prevention volunteers, along with the parents, children, or family members of any of those persons.⁶

Inadequate interpretation of the participation of any of these LEP persons may result in miscarriages of justice and may put the community at risk. For example, in a 2013 case, an LEP victim-witness requested an interpreter, but the judge did not provide an interpreter and asked counsel to merely rephrase the questions. Eventually, the judge dismissed the charge due to insufficient testimony. Six months later, the defendant was arrested for the brutal sexual assault of a 15-year-old girl.⁷ In that case, there remains a prima facie possibility that inadequate interpretation may have led to increased community risk.⁸

Judges must be sensitive to their duty to identify LEP individuals who come into contact with their courts. Judges must be cognizant of the possibility of all LEP individuals who are involved in the many activities that surround court proceedings but are not in the actual presence of the judge. Our courts are often referred to as the people’s court. LEP individuals comprise many of these people. Courts must be aware of these LEP individuals and work to ensure that participating LEP persons have meaningful access to all court services.

Equal Access to Justice

In criminal proceedings, LEP defendants are entitled to the assistance of an interpreter under the U.S. Constitution. Federal courts have found the constitutional right to language access services in criminal proceedings under the Fifth, Sixth, and Fourteenth Amendments.⁹

Also in civil matters, the assistance of an interpreter must be considered to ensure meaningful access to open, fair, efficient, and unbiased courts. “When [courts] fail to provide competent interpreters for people in civil cases . . . they can’t protect their children, they can’t protect their homes, they can’t protect their safety, [and] Society suffers because its laws cannot be enforced.”¹⁰

Judges can ensure the judicial integrity of the courts by establishing and following policies and actions that do not unjustly limit or burden the ability of certain groups to be heard. No court would want to erode its legitimacy by either intentionally or unintentionally barring LEP individuals from full participation. All of those who work within the court system—including judges, lawyers, clerks, assistants, and administrative staff—must work together to maintain and uphold the legitimacy of the judicial system and to prevent miscarriages of justice.

For example, the Colorado Judicial Department has significantly revised its Chief Justice Directive 06-03, which now provides for language access in all court operations and for language interpreters for all types of cases.¹¹ Judges should be aware that court language services must be considered not only in trials and hearings, but for all administrative settings.

A common goal should be to provide quality language services, when necessary, to all LEP individuals.

Title VI of the 1964 Civil Rights Act

Title VI of the 1964 Civil Rights Act (Title VI) states: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”¹² Longstanding case law, regulations, and agency interpretation hold that language-based discrimination constitutes a form of national origin discrimination under Title VI.¹³ For example, in Lau v. Nichols, the U.S. Supreme Court held that a school district that had received federal funds violated Title VI’s prohibition against discrimination based on national origin by failing to provide adequate language services to LEP students.¹⁴ Other federal courts have found that language-based discrimination constitutes a form of national origin discrimination prohibited by Title VI.¹⁵ In T.R. v. School District of Philadelphia, the court found that federal funding recipient schools must take reasonable steps to communicate with LEP persons in languages other than English to ensure meaningful access to those schools under Title VI.¹⁶

Any state court that receives federal funding could be in violation of Title VI if that court fails to provide language services to LEP persons and that failure rises to the level of denying those persons meaningful access to the judicial system.

Language Services

There are two main ways a court can provide language services: oral interpretation and written translation. Oral interpretation can range from onsite interpreters to telephonic interpretation services. Likewise, written translation can range from translation of an entire document to translation of a short piece of text or even just a description of a document.¹⁷

While a qualified interpreter is essential in most court situations involving LEP individuals, there is no simple formula that dictates when an interpreter must be provided. “[I]t is within the sound discretion of the trial court as to whether or not an interpreter is necessary.”¹⁸ Although a trial court should err on the side of caution in providing an interpreter, “[f]ailure to appoint an interpreter . . . is reversible error only when the record shows that the defendant’s presentation of the case has thereby been hampered.”¹⁹

The need for interpreters also must be considered, not just in court proceedings, but in all court-related proceedings. The Florida courts recently modified their rules to require court interpreting services during both court hearings as well as ancillary activities such as depositions, mediations, and other similar proceedings.²⁰ In doing so, the Florida courts also clarified the need for coverage to all LEP persons, not just for non-English-speaking individuals.²¹

The Florida rules also added flexibility as to when and where certified interpreters were needed. The modified rules expressly state a preference for the appointment of a certified or language skilled interpreter, whenever possible.²² However, the rules allow for provisionally approved interpreters if a certified interpreter is not available and under a finding of good cause. In exceptional circumstances, a court may appointment an interpreter who is not certified, provisionally approved, or even registered with courts.²³ These options preserve LEP individuals’ rights and court duties, while at the same time promoting practicality and efficiency.

The National Center for State Courts (NCSC) Language Access Services Section works closely with the Council of Language Access Coordinators (CLAC).²⁴ Along with calls to action, the NCSC has published a helpful report entitled “Access to Justice for Limited English Proficient Litigants: Creating Solutions to Language Barriers in State Courts.”²⁵

The NCSC and the CLAC’s activities have resulted in improved LEP training in federal agencies and court systems. Some courts place language identifying cards and posters at first-contact points. Other courts have translated documents needed to advise LEP individuals of their rights. Still others have prepared videos that LEP individuals may view without requiring direct contact with court staff. These measures free up the court staff, allowing interpreters to perform other functions while the LEP individual is being advised of his or her rights and available resources. Many states have adopted similar measures.

Along with these systemwide efforts, recent cases highlight efforts by judges to assist LEP persons and clarify when and where interpreters, specifically, are required.

In Sud v. Man Keng Ho, the trial court allowed a co-defendant, Ho, to interpret for another co-defendant Soon Lee Pang.²⁶ Ho told Pang to say yes to everything the judge asked and that Ho would take care of everything.²⁷ The appellate court found that Pang did not knowingly and voluntarily waive his statutory right to a certified interpreter.²⁸

In State v. Wang, defendant Xialong Wang and a friend of the victim objected to the paraphrased manner of the victim’s Mandarin interpreter.²⁹ The court overruled Wang’s objection, retained the interpreter for the rest of the first day, and then found a replacement. However, the appellate court found that the trial court abused its discretion by not dismissing the erring interpreter forthwith and that the trial court had neither provided certified interpreters nor recorded any effort to do so.³⁰

By contrast, in State v. Marroquin-Aldana, the trial court utilized four interpreters during the court proceedings.³¹ When two interpreters voiced concerns about another interpreter’s translation, the court permitted them to listen to the record and correct it. The court dismissed the erring interpreter. The remaining interpreters conducted sidebar conferences when they encountered subsequent translation issues. The court frequently asked counsel and witnesses to “speak slowly and loudly” for the benefit of the interpreters.³² Maine’s Supreme Court found that the trial court appropriately “took corrective action in every instance. . . .”³³

Standards

In 2012, the American Bar Association adopted “Standards for Language Access in Courts” and urged courts to adopt language access policies, recommending that federal and state governments provide funding for that purpose.³⁴ These standards provide excellent guidance to court officials on the unique needs of LEP individuals and balancing those needs. The standards “are intended to assist courts in designing, implementing, and enforcing a comprehensive system of language access services that is suited to the needs of the communities they serve. . . . [I]t is increasingly necessary to the fair administration of justice to ensure that courts are language accessible to LEP persons who are brought before, or require access to, the courts.”³⁵

Professional Responsibility for Court Interpreters

The NCSC also has produced a Model Code of Professional Responsibility for Interpreters in the Judiciary.³⁶ Some states have adopted their own codes based on the Model Code.³⁷ “The Model Code presents key concepts and precepts, which over the years have emerged in statutes, rules, case law, and professional experience” and was developed with the help of an advisory group that included judges, lawyers, court administrators, and state and federally certified professional interpreters.³⁸ The purposes of the Model Code are threefold: (1) to articulate a core set of principles recommended for incorporation in state and local jurisdictions, (2) to serve as a reference, and (3) to serve as a basis for education and training.³⁹

An example from the Model Code is Canon 1: Accuracy and Completeness, which states that interpreters shall render a complete and accurate interpretation or sight translation, without altering, omitting, or adding anything to what is stated or written, and without explanation.⁴⁰ “[I]nterpreters are obligated to apply their best skills and judgment to preserve faithfully the meaning of what is said in court, including the style or register of speech. Verbatim . . . interpretations are not appropriate when they distort the meaning of the source language, but every spoken statement, even if it appears non-responsive, obscene, rambling, or incoherent should be interpreted. This includes apparent misstatements. Interpreters should never interject their own words, phrases, or expressions.”⁴¹ Other canons include Representation of Qualifications, Impartiality and Avoidance of Conflict of Interest, Professional Demeanor, Confidentiality, and Professional Development.⁴²

Language Access Plans

A Language Access Plan (LAP) provides both internal and external audiences with documented procedures and policies intended to establish or improve meaningful access for LEP court users.⁴³ The plan should provide a strategic framework with realistic goals and outcomes. The NCSC suggests that a plan should include, but not be limited to, the following:

• The process for identifying court users in need of language assistance, including a description of how data are routinely collected and analyzed;
• The various language services to be provided, such as signage, translation, interpreters, and bilingual staff;
• A description of initial and ongoing training efforts for judges, court staff, and justice partners;
• Procedures for notifying LEP court users of available services;
• Ongoing processes for monitoring and evaluating services and updating the LAP accordingly;
• Information on the position or program charged with implementation and management of the LAP;
• Information on the stakeholders and collaborative partners involved in development and oversight;
• Timelines, objectives, and milestones;
• Description of staff and funding resources needed for initial implementation and for ongoing management; and
• Identification of issues and/or obstacles and strategies to address these.⁴⁴

These plans help state court administrators understand the magnitude, source, and complexity of the language assistance needs in their courts.⁴⁵ Developing a plan requires increasing knowledge about not only the particular languages of the courts’ LEP population but also the immigration status and cultural composition of their communities.⁴⁶

Best Practices

The authors of “Finding Justice in Translation: American Jurisprudence Affecting Due Process for People with Limited English Proficiency Together with Practical Suggestions,”⁴⁷ which include an author of this article, captured best practices for judges regarding language interpretation services for LEP individuals. This list includes the following:

• Courts should appoint a qualified court interpreter at the earliest stage of the proceedings.
• Judges and counsel should discuss, at pretrial, any unusual expectations, special concerns, needs, or burdens that may be placed on the interpreter during trial.
• In cases where there are multiple defendants whose interests may be in conflict with each other, judges should discuss with counsel and consider the need for the appointment of separate interpreters.
• In criminal cases, judges should discuss appropriate questions to be posed to the jury pool.
• Courts should arrange for multiple interpreters for lengthy hearings and for all jury trials.
• Courts, at the outset of any proceeding, should always identify the interpreter by name, her or his level of qualification, and the subject language.
• The court should administer the interpreter oath on the record.
• The court should briefly explain, on the record, to the accused and attorneys the professional role of the interpreter—she or he is not legal counsel and cannot give legal advice, editorialize, or otherwise.
• Courts should respect the fact that court interpreters can interpret only one person at a time; simultaneous speaking by several individuals, such as attorneys, the judge, or witnesses, severely impacts both accuracy and completeness. Courts should caution everyone regarding simultaneity, and then act as gatekeeper, monitor, and cautioner.
• Judges must be sensitive to interpreter fatigue and call more recesses in cases where interpreters are used and must respond to interpreter requests for breaks.
• Judges and counsel should ensure that any written documents that will be utilized at trial are accessible to the interpreter in a timely manner. This should be mandatory if the document needs to be formally translated.
• Courts must recognize that interpreters can be appointed, in an abundance of caution, on an as-needed basis where a party is quite fluent in English but may need the periodic assistance of an interpreter.
• A judge must never dictate “don’t translate this.” Interpreters are professionally and ethically obligated to interpret all that is said.
• A bilingual judge should never function as an interpreter during court-related proceedings.
• Courts should provide, where needed, uniformly approved translated documents such as an Affidavit of Indigency and a Statement in Advance of Plea.
• New judges should review rules, policies, and case law regarding language services, and LEP individuals and should be aware of various modes of interpretation including simultaneous, consecutive, or sight translation.⁴⁸

A comprehensive listing of suggestions, as well as helpful checklists, are found in A Judge’s Benchbook on Immigration Law and Related Matters.⁴⁹

Conclusion

The right to be present at trial includes not only physical attendance “but also comprehension of the proceedings.”⁵⁰ Courts, counsel, and court interpreters must work together in order to preserve the constitutional rights of LEP persons. Unless these LEP individuals are provided meaningful access to the courts, they may suffer from an unconstitutional deprivation of their rights. Additionally, courts themselves will likely experience diminished integrity and trust.

Judges have an affirmative duty to act as gatekeepers. Judges should educate themselves accordingly in upholding LEP individuals’ constitutional rights. Not only is it good policy, it is the law.

Endnotes

1. Utah Courts, http://www.utcourts.gov (last visited Apr. 10, 2017).

2. Department of Justice Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41455, 41457 (June 18, 2002) [hereinafter DOJ Guidance].

3. Language Access in State Courts, U.S. Dep’t of Justice, Civil Rights Div., Fed. Coordination and Compliance Sec., at 2 (Sept. 2016), https://www.justice.gov/crt/file/892036/download [hereinafter Language Access].

4. Robert Peck, President of the Ctr. for Constitutional Litig., Experts Speak on Language Access, Nat’l Ctr. for State Courts (2013), vimeo.com/66249113.

5. Id.

6. DOJ Guidance, supra note 2, at 41459.

7. Language Access, supra note 3, at 7.

8. Id.

9. See, e.g., United States v. Cirrincione, 780 F.2d 620, 634 (7th Cir. 1985) (a defendant in a criminal proceeding is denied due process when the proceeding is incomprehensible to him, the accuracy and scope of the interpretation at a hearing or trial are subject to grave doubt, the nature of the proceeding is not explained to him, or there is a credible claim of incapacity due to misunderstanding from language difficulty and the court fails to review the evidence and make appropriate findings of fact); United States v. Lim, 794 F.2d 469, 470 (9th Cir. 1986); United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2d Cir. 1970) (fluency in English can be so impaired that without an interpreter, it can interfere with the right to confrontation or the capacity of a defendant or the right to understand or respond to questions as a witness); United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir. 1994) (the lack of an interpreter for a defendant while testifying clearly implicates the defendant’s Fifth Amendment right).

10. Chief Judge Eric T. Washington, D.C. Court of Appeals, Experts Speak on Language Access, Nat’l Ctr. for State Courts (2013), vimeo.com/66249113.

11. Michael L. Bender, Former Chief Justice, Supreme Court of Colo., Letter from Michael L. Bender, Chief Justice, Colo. Supreme Court, to COSCA & CCJ Members (June 28, 2011), available at http://go.usa.gov/xDH2G.

12. 42 U.S.C.A. § 2000d.

13. United States v. Maricopa Cnty., Ariz., 915 F. Supp. 2d 1073, 1079 (D. Ariz. 2012).

14. 414 U.S. 563, 568, 94 S. Ct. 786, 786 (1974) (abrogated on other grounds by Alexander v. Sandoval, 532 U.S. 275 (2001)).

15. See, e.g., Serna v. Portales Mun. Sch., 499 F.2d 1147, 1153 (10th Cir. 1974); Jones v. Gusman, 296 F.R.D. 416, 454 (E.D. La. 2013).

16. No. CV 15-4782, 2016 WL 6994973, at *11 (E.D. Pa. Nov. 30, 2016).

17. DOJ Guidance, supra note 2, at 41460.

18. State v. Jadama, 2010 UT App. 107, ¶ 12, 232 P.3d 545, 550 (quoting State v. Trujillo, 117 Utah 237, 214 P.2d 626, 634–35 (1950)).

19. State v. Drobel, 815 P.2d 724, 737 (Utah Ct. App. 1991) (citation omitted).

20. In re Amendments to Fla. Rules for Certification & Regulation of Spoken Language Court Interpreters, 159 So. 3d 804, 804 (Fla. 2015).

21. Id.

22. In re Amendments to Fla. Rules of Judicial Admin., 176 So. 3d 267, 268 (Fla. 2015).

23. Id.

24. Nat’l Ctr. for State Courts, Language Access Serv. Sec., http://www.ncsc.org/languageaccess (last visited Apr. 10, 2017).

25. A National Call to Action, Nat’l Ctr. for State Courts, http://www.ncsc.org/Services-and-Experts/Areas-of-expertise/Language-access/A-National-Call-To-Action.aspx (last visited Apr. 10, 2017) [hereinafter National Call to Action].

26. No. E2011-01555-COA-R3CV, 2012 WL 1079896, at *1 (Tenn. Ct. App. Mar. 30, 2012).

27. Id.

28. Id. at *8.

29. 2015-Ohio-439, ¶ 2, 2015 WL 501885, *1 (Ohio Ct. App. Feb. 6, 2015).

30. Id. ¶ 15.

31. 2014 ME 47, 89 A.3d 519, 526 (Mar. 25, 2014).

32. Id.

33. Id. at 532.

34. Standards for Language Access in Courts, Am. Bar Ass’n, Standing Comm. on Legal Aid & Indigent Defendants (Feb. 2012), http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_standards_for_language_access_proposal.authcheckdam.pdf.

35. Id. at 1.

36. Model Code of Professional Responsibility for Interpreters in the Judiciary, Nat’l Ctr. for State Courts (1995), http://ncsc.contentdm.oclc.org/cdm/ref/collection/accessfair/id/118 [hereinafter Model Code].

37. For example, the Utah courts have adopted a Code of Professional Responsibility for Court Interpreters that is based on the Model Code. See Code of Professional Responsibility for Court Interpreters, Utah Courts, https://www.utcourts.gov/resources/rules/ucja/append/h_intprt/apph.htm (last visited Apr. 10, 2017).

38. Model Code, supra note 36, at 197.

39. Id.

40. Id. at 200.

41. Id.

42. Id. at 201, 202, 204, 205, 210.

43. National Call to Action, supra note 25, at 22.

44. Id. at 23.

45. Id. at 14.

46. Id.

47. Maxwell Alan Miller, Honorable Lynn W. Davis, Adam Prestidge & Dr. William G. Eggington, Finding Justice in Translation: American Jurisprudence Affecting Due Process for People with Limited English Proficiency Together with Practical Suggestions, 14 Harv. Latino L. Rev. 117 (2011).

48. Id. at 150–53.

49. See Kathleen M. Sullivan, A Judge’s Benchbook on Immigration Law and Related Matters (Am. Bar Ass’n, Ctr. for Immigration Law & Representation, Judicial Immigration Educ. Project, 2001).

50. State v. Jur, 166 N.H. 234, 94 A.3d 283, 291 (2014) (citation omitted).