Amended in Assembly April 14, 2016

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 amended, 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. begin delete 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. end delete

This bill would replace the term “hearing impaired” with the term “hard of begin delete 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. end delete begin insert hearing. end insert begin insert ” end insert

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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.

end delete begin delete

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.

end delete begin delete

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.

end delete begin delete

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.

end delete

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
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 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 an action involving
a traffic or other infraction, a small claims court proceeding, a
juvenile court proceeding, a family court proceeding or service,
or 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 begin delete a end delete begin insert an end insert
administrative hearing, where a begin delete party, witness, or juror end delete begin insert party or
witness end insert is an individual who is deaf or hard of hearing and the
individual who is deaf or hard of hearing is present and
participating, the proceedings shall be interpreted in a language
that the individual who is deaf or hard of hearing understands by
a begin delete court-certified end delete begin insert qualified 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 court-certified end delete begin insert qualified end insert interpreter.

(d) For purposes of this section, “interpreter” includes an oral
interpreter, a sign language interpreter, or a deaf-blind interpreter,
depending upon the needs of the individual who is deaf or hard of
hearing.

(e) For purposes of this section, “intermediary interpreter” means
an individual who is deaf or 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 hard of hearing and the begin delete court-certified end delete begin insert qualified end insert
interpreter.

(f) For purposes of this begin delete section,“court-certified end delete begin insert section,
“qualified end insert interpreter” means an interpreter who has been certified
as competent to interpret court proceedings by begin delete 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 delete begin insert 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 hard of hearing. end insert

(g) If the appointed interpreter is not familiar with the use of
particular signs by the individual who is deaf or 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 hard of hearing or his or her representative, appoint an
intermediary interpreter.

begin delete

(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 delete begin insert

(h) (1) Before 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 hard of
hearing. 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 hard of
hearing 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 hard or hearing. Testing entities
may include educational institutions, testing organizations, joint
powers agencies, or public agencies.

end insert begin insert

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

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 loss, a good faith effort to secure
the services of begin delete a court-certified end delete begin insert an end insert interpreter shall be made without
any unnecessary delay, unless either the individual who is deaf or
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 begin delete employer of the investigating peace officer or other
person questioning or otherwise interviewing the alleged victim
or witness. end delete begin insert county, or other political subdivision of the state, in
which the action is pending. end insert

(k)  begin delete (1) end delete begin delete   end delete A statement, written or oral, made by an individual who
the court finds is deaf or 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, shall not be used against that individual
who is deaf or 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 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.

begin delete

(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 delete

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

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

(n) In any action or proceeding in which an individual who is
deaf or 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
hard of hearing.

begin insert

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

end insert