California Legislature—2015–16 Regular Session

Assembly Bill No. 1709

Introduced by Assembly Member Gallagher

(Coauthors: Assembly Members Kim, Lackey, and Mathis)

(Coauthors: Senators Anderson and Nielsen)

January 25, 2016

An act to amend Section 754 of the Evidence Code, relating to courts.

LEGISLATIVE COUNSEL’S DIGEST

AB 1709, as introduced, Gallagher. Courts: interpreters: deaf or hard of hearing.

Existing law, in any civil or criminal action where a party or witness is an individual who is deaf or hearing impaired and that individual is present and participating, requires the proceedings to be interpreted in a language that the individual who is deaf or hearing impaired understands by a qualified interpreter appointed by the court or other appointing authority, or as agreed upon. Existing law defines a qualified interpreter as an interpreter who has been certified as competent to interpret court proceedings by a testing organization, agency, or educational institution approved by the Judicial Council as qualified to administer tests for court interpreters for individuals who are deaf or hearing impaired. Existing law requires each superior court to maintain a current roster of qualified interpreters.

This bill would replace the term “hearing impaired” with the term “hard of hearing,” and would replace the term “qualified interpreter” with the term “court-certified interpreter.” The bill would define a court-certified interpreter as an interpreter who has been certified as competent to interpret court proceedings by an organization approved pursuant to the California Rules of Court and who is listed on the Judicial Council’s list of recommended court interpreters. The bill would authorize a court, for good cause, to appoint an interpreter who is not court-certified and would require the court to follow certain procedures and guidelines when making the appointment. The bill would delete the requirement that each superior court maintain a current roster of qualified interpreters.

Existing law requires a good faith effort to secure the services of an interpreter to be made whenever a peace officer or other person having a law enforcement or prosecutorial function in certain investigations and proceedings questions or otherwise interviews an alleged victim or witness who demonstrates or alleges deafness or hearing impairment. Existing law requires the payment of the interpreter’s fee incurred during the questioning or interview to be a charge against the county, or other political subdivision of the state, in which the action is pending.

This bill would instead require payment of the interpreter’s fee to be a charge against the employer of the investigating peace officer or other person questioning or otherwise interviewing the alleged victim or witness, as described above.

Existing law prohibits a written or oral statement made by an individual who the court finds is deaf or hearing impaired in reply to question of a peace officer or other person having a law enforcement or prosecutorial function in certain investigations and proceedings from being used against that individual unless the question was accurately interpreted and the statement was made knowingly, voluntarily, and intelligently and was accurately interpreted, or the court finds the individual could not have used an interpreter or an interpreter was not otherwise required by a specified federal law, and the statement was made knowingly, voluntarily, and intelligently.

This bill would prohibit a court from considering a statement attributed to a person who is deaf or hard of hearing unless the statement was accurately interpreted, or the individual could not have used an interpreter or an interpreter was not otherwise required by a specified federal law.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 754 of the Evidence Code is amended to
read:

754.  

(a) As used in this section, “individual who is deaf or
begin delete hearing impaired” end delete begin insert hard of hearing end insert begin insert ” end insert means an individual with a
hearing loss so great as to prevent his or her understanding
language spoken in a normal tone, but does not include an
individual who is begin delete hearing impaired end delete begin insert hard of hearing end insert provided with,
and able to fully participate in the proceedings through the use of,
an assistive listening system or computer-aided transcription
equipment provided pursuant to Section 54.8 of the Civil Code.

(b) In any civil or criminal action, begin delete including, but not limited to,
any end delete begin insert including an end insert action involving a traffic or other infraction, begin delete any end delete
begin insert a end insert small claims court proceeding, begin delete any end delete begin insert a end insert juvenile court proceeding,
begin delete any end delete begin insert a end insert family court proceeding or service, or begin delete any end delete begin insert a end insert proceeding to
determine the mental competency of a person, in any court-ordered
or court-provided alternative dispute resolution, including
mediation and arbitration, or begin delete any end delete begin insert a end insert administrative hearing, where
a begin delete party or witness end delete begin insert party, witness, or juror end insert is an individual who is
deaf or begin delete hearing impaired end delete begin insert hard of hearing end insert and the individual who
is deaf or begin delete hearing impaired end delete begin insert hard of hearing end insert is present and
participating, the proceedings shall be interpreted in a language
that the individual who is deaf or begin delete hearing impaired end delete begin insert hard of hearing end insert
understands by a begin delete qualified end delete begin insert court-certified end insert interpreter appointed by
the court or other appointing authority, or as agreed upon.

(c) For purposes of this section, “appointing authority” means
a court, department, board, commission, agency, licensing or
legislative body, or other body for proceedings requiring a begin delete qualified end delete
begin insert court end insert begin insert -certified end insert interpreter.

(d) For begin delete the end delete purposes of this section, “interpreter” begin delete includes, but
is not limited to, end delete begin insert includes end insert an oral interpreter, a sign language
interpreter, or a deaf-blind interpreter, depending upon the needs
of the individual who is deaf or begin delete hearing impaired. end delete begin insert hard of hearing. end insert

(e) For purposes of this section, “intermediary interpreter” means
an individual who is deaf or begin delete hearing impaired, end delete begin insert hard of hearing, end insert or
a hearing individual who is able to assist in providing an accurate
interpretation between spoken English and sign language or
between variants of sign language or between American Sign
Language and other foreign languages by acting as an intermediary
between the individual who is deaf or begin delete hearing impaired end delete begin insert hard of
hearing end insert and the begin delete qualified end delete begin insert court-certified end insert interpreter.

(f) For purposes of this section, begin delete “qualified end delete begin insert “court-certified end insert
interpreter” means an interpreter who has been certified as
competent to interpret court proceedings by begin delete a testing organization,
agency, or educational institution approved by the Judicial Council
as qualified to administer tests to court interpreters for individuals
who are deaf or hearing impaired. end delete begin insert an organization approved
pursuant to the California Rules of Court and who is listed on the
Judicial Council’s list of recommended court interpreters. end insert

(g)  begin delete In the event that end delete begin insert If end insert the appointed interpreter is not familiar
with the use of particular signs by the individual who is deaf or
begin delete hearing impaired end delete begin insert hard of hearing end insert or his or her particular variant
of sign language, the court or other appointing authority shall, in
consultation with the individual who is deaf or begin delete hearing impaired end delete
begin insert hard of hearing end insert or his or her representative, appoint an
intermediary interpreter.

begin delete

(h) Prior to July 1, 1992, the Judicial Council shall conduct a
study to establish the guidelines pursuant to which it shall
determine which testing organizations, agencies, or educational
institutions will be approved to administer tests for certification
of court interpreters for individuals who are deaf or hearing
impaired. It is the intent of the Legislature that the study obtain
the widest possible input from the public, including, but not limited
to, educational institutions, the judiciary, linguists, members of
the State Bar, court interpreters, members of professional
interpreting organizations, and members of the deaf and
hearing-impaired communities. After obtaining public comment
and completing its study, the Judicial Council shall publish these
guidelines. By January 1, 1997, the Judicial Council shall approve
one or more entities to administer testing for court interpreters for
individuals who are deaf or hearing impaired. Testing entities may
include educational institutions, testing organizations, joint powers
agencies, or public agencies.

Commencing July 1, 1997, court interpreters for individuals who
are deaf or hearing impaired shall meet the qualifications specified
in subdivision (f).

end delete begin insert

(h) For good cause, a court may appoint an interpreter who is
not court-certified. When appointing an interpreter who is not
court-certified, the court shall follow the good cause and
qualification procedures and guidelines for uncertified or
unregistered spoken language interpreters set forth in Section
68561 of the Government Code and those adopted by the Judicial
Council.

end insert

(i) Persons appointed to serve as interpreters under this section
shall be paid, in addition to actual travel costs, the prevailing rate
paid to persons employed by the court to provide other interpreter
services unless such service is considered to be a part of the
person’s regular duties as an employee of the state, county, or other
political subdivision of the state. Except as provided in subdivision
(j), payment of the interpreter’s fee shall be a charge against the
court. Payment of the interpreter’s fee in administrative
proceedings shall be a charge against the appointing board or
authority.

(j) Whenever a peace officer or any other person having a law
enforcement or prosecutorial function in any criminal or
quasi-criminal investigation or non-court proceeding questions or
otherwise interviews an alleged victim or witness who demonstrates
or alleges deafness or hearing begin delete impairment, end delete begin insert loss, end insert a good faith effort
to secure the services of begin delete an end delete begin insert a court-certified end insert interpreter shall be
begin delete made, end delete begin insert made end insert without any unnecessary begin delete delay end delete begin insert delay, end insert unless either
the individual who is deaf or begin delete hearing impaired end delete begin insert hard of hearing end insert
affirmatively indicates that he or she does not need or cannot use
an interpreter, or an interpreter is not otherwise required by Title
II of the begin insert federal end insert Americans with Disabilities Act of 1990 (Public
Law 101-336) and federal regulations adopted thereunder. Payment
of the interpreter’s fee shall be a charge against the begin delete county, or other
political subdivision of the state, in which the action is pending. end delete
begin insert employer of the investigating peace officer or other person
questioning or otherwise interviewing the alleged victim or witness. end insert

(k)  begin delete No end delete begin insert (1) end insert begin insert   end insert begin insert A end insert statement, written or oral, made by an individual
who the court finds is deaf or begin delete hearing impaired end delete begin insert hard of hearing end insert in
reply to a question of a peace officer, or any other person having
a law enforcement or prosecutorial function in any criminal or
quasi-criminal investigation or proceeding, begin delete may end delete begin insert shall not end insert be used
against that individual who is deaf or begin delete hearing impaired end delete begin insert hard of
hearing end insert unless the question was accurately interpreted and the
statement was made knowingly, voluntarily, and intelligently and
was accurately interpreted, or the court begin delete makes special findings end delete
begin insert finds end insert that either the individual could not have used an interpreter
or an interpreter was not otherwise required by Title II of the
begin insert federal end insert Americans with Disabilities Act of 1990 (Public Law
101-336) and federal regulations adopted thereunder and that the
statement was made knowingly, voluntarily, and intelligently.

begin insert

(2) A statement attributed to a person who is deaf or hard of
hearing shall not be considered by the court unless the statement
was accurately interpreted, or either the individual could not have
used an interpreter or an interpreter was not otherwise required
by Title II of the federal American with Disabilities Act of 1990
(Public Law 101-336) and federal regulations adopted thereunder.
A statement interpreted by a court-certified interpreter or an
interpreter appointed pursuant to subdivision (h) is presumed to
be accurately interpreted.

end insert

(l) In obtaining services of an interpreter for purposes of
subdivision (j) or begin insert paragraph (1) of subdivision end insert (k), priority shall
be given to first obtaining a begin delete qualified end delete begin insert court-certified end insert interpreter.

(m) Nothing in subdivision (j) or begin insert paragraph (1) of subdivision end insert
(k) shall be deemed to supersede the requirement of subdivision
(b) for use of a begin delete qualified end delete begin insert court-certified end insert interpreter for begin delete individuals end delete
begin insert an individual end insert who begin delete are end delete begin insert is end insert deaf or begin delete hearing impaired end delete begin insert hard of hearing end insert
participating as begin delete parties or witnesses end delete begin insert a party or witness end insert in a trial or
hearing.

(n) In any action or proceeding in which an individual who is
deaf or begin delete hearing impaired end delete begin insert hard of hearing end insert is a participant, the
appointing authority shall not commence proceedings until the
appointed interpreter is in full view of and spatially situated to
assure proper communication with the participating individual
who is deaf or begin delete hearing impaired. end delete begin insert hard of hearing. end insert

begin delete

(o) Each superior court shall maintain a current roster of
qualified interpreters certified pursuant to subdivision (f).

end delete