BILL ANALYSIS �
AB 618
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Date of Hearing: May 3, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 618 (Furutani) - As Amended: March 31, 2011
As Proposed to be Amended
SUBJECT : COURT INTERPRETERS: LANGUAGE ACCESS BILL OF RIGHTS
KEY ISSUE : SHOULD EXISTING CASE AUTHORITY AND PRACTICES BE
CODIFIED IN ORDER TO PROTECT AND CLARIFY THE RIGHTS OF CRIMINAL
DEFENDANTS WITH RESPECT TO THE PROVISION OF COURT INTERPRETERS
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
SYNOPSIS
This bill would collect and codify certain rules surrounding the
rights of an accused non-English speaker to an interpreter
during criminal proceedings. The California Constitution
establishes this right, which has been clarified in case law but
remains largely outside statute. The bill is sponsored by the
court interpreters union and supported by language rights
advocates and others. Supporters argue that because existing
legal protections are spread throughout case law, statute and
the Constitution, individuals are often unfamiliar with their
rights. Supporters believe this bill, would make it easier for
court personnel, attorneys, and those who have to appear in
court to be aware of and obtain their legal rights without
unknowing waiver. Specifically, the bill addresses the
circumstances under which an interpreter may or may not be
shared with another participant in the proceedings, the time and
manner by which a party may challenge the competence of the
interpreter, the use of non-interpreter court staff and those
employed by entities that may be affected by the outcome, and
the means by which the right to an interpreter may be waived.
The Judicial Council expressed concerns about the bill prior to
the amendments the author proposes to take in Committee, which
are believed to be responsive to these concerns.
SUMMARY : Codifies existing constitutional, statutory and case
authority regarding the right to an interpreter when a person
who is charged with a crime lacks proficiency in English.
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Specifically, this bill :
1)Provides that a person who is unable to understand English,
and who is charged with a crime, has the right to a competent
interpreter provided by the court to provide exclusive and
ongoing, interpretation services throughout any criminal
proceeding. For purposes of this subdivision "exclusive"
means a separate interpreter during each proceeding who is not
shared with any, witness, or with any party or other person
who has a right to participate in the proceeding unless the
interpreter can be shared with that party or other person
without impairing the defendant's rights to comprehension of
the proceedings or communication with counsel, or the person
charged with a crime has waived the right under this section.
2)Provides that a person who is charged with a crime has a right
to a determination of the competence of an interpreter at any
time during a proceeding if on the basis of the interpreter's
provision of interpreter services during a criminal
proceeding, there is good cause to question whether the
continued use of the interpreter in the proceeding may
prejudice the rights of any person such that it would not be
in the interest of justice or efficiency for the interpreter
to continue.
3)Specifies that notwithstanding any other provision of this
article, a non-interpreter staff person of the court, or any
person employed by the sheriff, probation department,
prosecutor, jail or corrections department of the prosecuting
city or county shall not provide interpreter services during a
proceeding under this section. This subdivision shall not be
construed to negate or modify the circumstances under which a
court has the authority to appoint a noncertified interpreter.
4)Establishes that the foregoing rights may only be waived
expressly by the person charged if the waiver is affirmatively
shown to be intelligent and voluntary.
EXISTING LAW :
1)Provides a constitutional right to interpreter throughout the
proceedings for a person unable to understand English who is
charged with a crime. (California Constitution Article I,
section 14.)
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2)Requires the Judicial Council to establish standards for
determining the need for a court interpreter in particular
cases, procedures for certified court interpreters to
establish their credentials on the record, procedures and
guidelines for qualifying an interpreter for a language not
designated by the Judicial Council, and procedures for
determining good cause for appointing and qualifying a
noncertified interpreter. (Govt. Code section 68564.)
COMMENTS : The author explains the need for the bill as follows:
Current law guarantees an interpreter for every person who
appears in a criminal court and who is limited English
speaking. This guarantee is contained in California's
constitution, various statutes, and primarily in state and
federal case law. Interpreters ensure that an accused is
fully aware and knowledgeable of the charges against
him/her. They also ensure that a person is able to
understand court proceedings, questions from the court, and
statements from witnesses. They also enable an accused to
communicate with his/her attorney during court proceedings.
Unfortunately, since the legal protections are spread
throughout case law, statute and the Constitution,
individuals are often unfamiliar with their rights. AB 618
would codify the core principles that comprise the right to
an interpreter. This "Language Access Bill of Rights"
makes it much easier for court personnel, attorneys, and
those who have to appear in court to become aware of their
legal rights.
More importantly, if this bill is adopted, it will provide
a valuable tool for individuals to advocate for their
rights while in court. Too often there are cases in which
a person is denied an interpreter, required to waive
critical due process rights without an interpreter, or are
simply left confused about court proceedings because they
are not accompanied by a court interpreter.
The California Federation of Interpreters produced a study
in 2008 and discovered many instances in which court
proceedings were conducted without an interpreter or based
on an improper waiver of an interpreter.
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In one case a Japanese man was issued a court order to
"stay-away" from an alleged victim without the assistance
of an interpreter. This occurred even after the defendant
uttered the words "No English."
In another case in Los Angeles, a judicial commission could
not understand whether a Farsi-speaking defendant was
trying to say "guilty" or "not guilty." After a long
exchange, the matter was postponed to another time.
AB 618 will assist legal rights organizations in educating
the public.
The Right To An Interpreter In Criminal Proceedings Is
Guaranteed By The California Constitution. Art. I, section 14
was added to the Constitution in 1974 by initiative, to ensure
that a person accused of a crime who did not understand English
would have an interpreter throughout the proceedings. It has
been recognized that interpreters are crucial for trial
testimony and for facilitating the defendant's understanding of
the ongoing dialogue between the attorneys, witnesses and the
judge. (People v. Aguilar (1984) 35 Cal.3d 785, 790.)
Interpreters allow the defendant to comprehend and effectively
participate in the proceeding, instead of being subjected to a
"babble of voices."
This Bill Codifies Case Law Establishing That A Party Generally
Has The Right To An Exclusive Interpreter. Under existing law,
codified by this bill, a party may not be required to share an
interpreter with a witness. In addition, a party should not be
required to share an interpreter with another party or other
person who has a right to participate in the proceeding when
doing so would be inconsistent with the party's rights to
communicate with counsel and to comprehend the proceedings.
(See, e.g., People v. Rodriguez (1986) 42 Cal.3d 1005, 1015;
People v. Chavez (1991) 231 Cal.App.3d 1471, 1478; People v.
Estrada (1996) 176 Cal.App.3d 410, 415.)
Challenges To Interpreter Competence. The right to an
interpreter connotes a competent interpreter. If there is
sufficient ground to challenge an interpreter's performance
during a hearing, the bill codifies the existing practice of
requiring a factual determination of the interpreter's
competence so that rights are not lost and the proceeding need
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not be repeated or the result set aside, with attendant costs,
to correct interpreter errors.
Prohibiting Most Obvious Bases For Questionable Interpreter
Assignments. An obvious ground for questioning the competence
of an interpreter is that the person assigned is employed by the
court for some purpose other than interpretation. The bill
prohibits the use of non-interpreter court staff. Another
presumptively inappropriate assignment is the use of a person
employed by an entity or office with an interest in the outcome,
such as the local district attorney or jail, which is likewise
prohibited by the bill.
Waiver of Right To An Interpreter. As a constitutional right,
the right to an interpreter is considered fundamental and cannot
be waived by any party other than the accused. An effective
waiver requires an affirmative showing from the party accused,
on the record, that the party knowingly and intelligently waived
that constitutional right. (Aguilar at 794.) The bill codifies
this case law.
Judicial Council Concerns Prior to Proposed Amendments . Prior
to the proposed amendments, the Judicial Council expressed
concern that this bill would interfere with the court's ability
to efficiently manage and assign interpreters. Specifically,
the Judicial Council's opposition was directed at the provisions
prohibiting the assignment of an interpreter to more than one
party in a proceeding, allowing for an immediate hearing to
challenge interpreter competence, and restricting the activities
of court staff who are not certified interpreters. The proposed
amendments are believed to be responsive to these concerns.
Author's Narrowing and Clarifying Amendments. In order to
better capture the intent of the bill, and to respond to the
concerns of the Judicial Council, the author properly proposes
the following amendments:
68571. (a) A person who is unable to understand English, and
who is charged with a crime, has the right to a competent
interpreter provided by the court to provide exclusive and
ongoing, and simultaneous interpretation translation services
throughout any criminal proceeding. at which the person is
physically present. For purposes of this subdivision
"exclusive" means a separate interpreter during each proceeding
who is not shared with any other party , witness, or with any
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party or other person who has a right to participate in the
proceeding unless the interpreter can be shared with that party
or other person without impairing the defendant's rights to
comprehension of the proceedings or communication with counsel,
or the person charged with a crime has waived the right under
this section .
(b) A person who is charged with a crime has a right to a
hearing at any point before or during a proceeding, if there is
a factual basis for having the hearing, to determine
determination of the competence of an interpreter at any time
during a proceeding if on the basis of the interpreter's
provision of interpreter services during a criminal proceeding,
there is good cause to question whether the continued use of the
interpreter in the proceeding may prejudice the rights of any
person such that it would not be in the interest of justice or
efficiency for the interpreter to continue. , or if any person's
rights would be prejudiced by the use of a noncertified
interpreter.
(c) Notwithstanding any other provision of this article, a
noninterpreter staff person of the court, or any person employed
by the sheriff, probation department, prosecutor, jail or
corrections department of the prosecuting city or county or any
other local government entity shall not provide interpreter
services at any time during a proceeding under this section.
This subdivision shall not be construed to negate or modify the
circumstances under which a court has the authority to appoint a
noncertified interpreter unless he or she is a certified
interpreter .
(d) The rights provided by this section may only be waived
expressly by the person charged if the waiver is affirmatively
shown to be intelligent and voluntary.
REGISTERED SUPPORT / OPPOSITION :
Support
The California Federation of Interpreters (sponsor)
AIDS Legal Referral Panel
California Communities United Institute
California Public Defenders Association
Communication Workers of America, Dist. 9
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Coalition for Humane Immigrant Rights of Los Angeles
Opposition (prior to proposed amendments)
Judicial Council
Analysis Prepared by : Kevin G. Baker and Rachel Taylor / JUD. /
(916) 319-2334