The Federal Court Interpreters Act & Waiver of Interpreter
Of the sixty million reported people who do not speak English at home, 15.4% speak English “not well” and 7% speak English “not at all.” When such people face federal criminal charges (or really any charges at all, for example in state court, too), it is extremely important that they have the assistance of an interpreter to be able to contribute to and assist their attorney in their defense.
Recognizing this need, the Court Interpreters Act protects the rights of federal litigants with limited English proficiency by requiring that courts utilize the services of certified interpreters in proceedings instituted by the United States when the failure to do would inhibit the party’s ability to participate fully in the proceedings.
The act also provides procedural safeguards to ensure that any waiver of this right is done knowingly, intelligently and voluntarily.
The interplay between these requirements and safeguards was spotlighted in the case of Defendant Adalberto Murgia – Rodriguez at sentencing, who did not speak English well. He used an interpreter early in the case, at which time he stipulated that law enforcement officers found marijuana in the truck he had been driving.
At trial, with the use of an interpreter, he testified that he had borrowed the truck and never knew that there was marijuana inside. He was then convicted of possession of marijuana with the intent to distribute. He was then sentenced to 55 months in federal prison.
At the sentencing hearing, he did not have the assistance of an interpreter. Mr. Muriga-Rodriguez said to the judge that the proceedings could proceed “in English.” The judge considered this position as a waiver of his right to have an interpreter during sentencing. Nothing more formal or deliberate was put on the court record about this. Judge Cindy Jorgensen was the judge. She dismissed the interpreter.
After being convicted and sentenced, Murgia-Rodriguez appealed his conviction, arguing that the judge made a mistake by failing to ensure that his stipulation waiving an interpreter was knowing, intelligent and voluntary, as required by the Court Interpreters Act.
The United States Court of Appeals for the Ninth Circuit agreed with Murgia-Rodriguez. The opinion is at 2016 DJDAR 2069 (March 1, 2016). It began its analysis by recognizing that court proceedings are conducted with “precise language” in often stressful conditions wherein “key determinations of affecting the individual’s personal liberty or financial well-being are often made based on credibility.” This is especially so in criminal proceedings.
The court of appeals then turned to how a person may properly waive his right to an interpreter. The court said a party may waive this right if, and only if, (1) the waiver is made expressly on the record by the party, (2) “after opportunity to consult with counsel;” (3) the presiding judge has explained to the party “the nature and effect of the waiver;” and (4) the waiver is approved by the presiding judge. 28 U.S.C. § 1827(f)(1).
In looking at the circumstances of Murgia-Rodriguez’s “waiver,” the appeals court noted that the trial court asked him if he could dismiss the interpreter, but Murgia-Rodriguez asked the judge to keep the interpreter present, saying “she can stay.” The judge then suggested to Murgia-Rodriguez that the interpreter was needed in other courtrooms and asked Murgia-Rodriguez again if she could leave. Murgia-Rodriguez responded, “I am comfortable proceeding in English.” The interpreter was then promptly dismissed.
The appeals court found this series of questions was not a proper waiver or even close to being proceduraly effective under the Act. Therefore, the court of appeals vacated the sentence and remanded the case for sentencing again.
For more information about general advice about being in court, please click on the following articles: