BILL ANALYSIS �
AB 618
Page 1
ASSEMBLY THIRD READING
AB 618 (Furutani)
As Amended May 27, 2011
Majority vote
JUDICIARY 7-2 APPROPRIATIONS 12-5
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|Ayes:|Feuer, Atkins, Dickinson, |Ayes:|Fuentes, Blumenfield, |
| |Huber, Huffman, Monning, | |Bradford, Charles |
| |Wieckowski | |Calderon, Campos, Davis, |
| | | |Gatto, Hall, Hill, Lara, |
| | | |Mitchell, Solorio |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Jones |Nays:|Harkey, Donnelly, |
| | | |Nielsen, Norby, Wagner |
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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.
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 as required by law. This includes a right not to
share an interpreter with a witness. The person charged with
the crime is also entitled to a separate interpreter not to be
shared with a codefendant during any trial proceeding,
including jury instructions, and in any proceeding, as
required by law, at which witnesses are called and testimony
is taken. Any rights pursuant to this provision may be waived
as provided by this section.
2)Provides that a person who is charged with a crime has a right
to a determination by the court 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, the court determines there is good cause
to question whether the continued use of the interpreter in
the proceeding may prejudice the rights of the person charged
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with the crime 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.
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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, to the extent this bill clarifies existing law, costs
should not be significant.
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
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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.
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.
Article 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
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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."
Under existing case 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.)
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 not be repeated or the result set aside, with
attendant costs, to correct interpreter errors.
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.
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.
AB 618
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Analysis Prepared by : Kevin G. Baker and Rachel Taylor / JUD.
/ (916) 319-2334
FN: 0000964