BILL NUMBER: AB 1709 INTRODUCED
BILL TEXT
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
hearing impaired" hard of hearing
" 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 hearing impaired
hard of hearing 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, including, but not
limited to, any including an action involving a
traffic or other infraction, any a
small claims court proceeding, any a
juvenile court proceeding, any a family
court proceeding or service, or any a
proceeding to determine the mental competency of a person, in any
court-ordered or court-provided alternative dispute resolution,
including mediation and arbitration, or any a
administrative hearing, where a party or witness
party, witness, or juror is an individual who is
deaf or hearing impaired hard of hearing
and the individual who is deaf or hearing impaired
hard of hearing is present and participating,
the proceedings shall be interpreted in a language that the
individual who is deaf or hearing impaired
hard of hearing understands by a qualified
court-certified 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
qualified court -certified
interpreter.
(d) For the purposes of this section,
"interpreter" includes, but is not limited to,
includes an oral interpreter, a sign language interpreter,
or a deaf-blind interpreter, depending upon the needs of the
individual who is deaf or hearing impaired.
hard of hearing.
(e) For purposes of this section, "intermediary interpreter" means
an individual who is deaf or hearing impaired,
hard of hearing, 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 hearing
impaired hard of hearing and the
qualified court-certified interpreter.
(f) For purposes of this section, "qualified
"court-certified interpreter" means 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 to
court interpreters for individuals who are deaf or hearing impaired.
an organization approved pursuant to the California
Rules of Court and who is listed on the Judicial Council's list of
recommended court interpreters.
(g) In the event that If the
appointed interpreter is not familiar with the use of particular
signs by the individual who is deaf or hearing impaired
hard of hearing 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 hearing
impaired hard of hearing or his or her
representative, appoint an intermediary interpreter.
(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).
(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.
(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 impairment,
loss, a good faith effort to secure the services of an
a court-certified interpreter shall be
made, made without any unnecessary
delay delay, unless either the individual who is
deaf or hearing impaired hard of hearing
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 federal 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 county, or other political subdivision of the
state, in which the action is pending. employer of the
investigating peace officer or other person questioning
or otherwise interviewing the alleged victim or witness.
(k) No (1) A
statement, written or oral, made by an individual who the court finds
is deaf or hearing impaired hard of hearing
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, may
shall not be used against that individual who is deaf or
hearing impaired hard of hearing unless
the question was accurately interpreted and the statement was made
knowingly, voluntarily, and intelligently and was accurately
interpreted, or the court makes special findings
finds that either the individual could not have used an
interpreter or an interpreter was not otherwise required by Title II
of the federal 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.
(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.
(l) In obtaining services of an interpreter for purposes of
subdivision (j) or paragraph (1) of subdivision (k),
priority shall be given to first obtaining a qualified
court-certified interpreter.
(m) Nothing in subdivision (j) or paragraph (1) of subdivision
(k) shall be deemed to supersede the requirement of
subdivision (b) for use of a qualified
court-certified interpreter for individuals
an individual who are is
deaf or hearing impaired hard of hearing
participating as parties or witnesses a
party or witness in a trial or hearing.
(n) In any action or proceeding in which an individual who is deaf
or hearing impaired hard of hearing 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 hearing impaired.
hard of hearing.
(o) Each superior court shall maintain a current roster of
qualified interpreters certified pursuant to subdivision (f).