BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
6
1
8
AB 618 (Furutani)
As Amended May 27, 2011
Hearing date: July 5, 2011
Government Code
SM:dl
RIGHT TO A COURT INTERPRETER
HISTORY
Source: California Federation of Interpreters
Prior Legislation:AB 663 (Jones) - 2009, Died on suspense in
Senate Appropriations
AB 3050 (Jones) - 2008, Vetoed
AB 2227 (Chu) - 2006, Vetoed
Support: AIDS Legal Referral Panel; California Public Defenders
Association; Coalition for Humane Immigrant Rights of
Los Angeles; Communications Workers of America; Legal
Services for Prisoners with Children; California
Communities United Institute; California Immigrant
Policy Center
Opposition:Judicial Council of California
Assembly Floor Vote: Ayes 52 - Noes 24
KEY ISSUES
SHOULD A CRIMINAL DEFENDANT'S RIGHT TO AN EXCLUSIVE INTERPRETER
BE CODIFIED?
(More)
AB 618 (Furutani)
Page 2
SHOULD A CRIMINAL DEFENDANT'S RIGHT TO A DETERMINATION BY THE
COURT OF THE COMPETENCE OF AN INTERPRETER WHERE THE COURT FINDS
GOOD CAUSE TO DO SO BE CODIFIED?
(CONTINUED)
SHOULD IT BE CODIFIED THAT COURTS MAY NOT APPOINT NON-INTERPRETER
STAFF TO ACT AS INTERPRETERS?
SHOULD IT BE CODIFIED THAT A DEFENDANT MAY WAIVE ALL OF THESE
RIGHTS?
PURPOSE
The purpose of this bill is to (1) codify the right currently
recognized in case law for a person charged with a crime who is
unable to understand English to a competent interpreter that is
not shared with another person; (2) codify the defendant's right
to a determination of the competence of the interpreter, if the
court finds good cause to do so; (3) prohibit the court from
appointing court staff or other specified employees who are not
interpreters to act as interpreters; and (4) provide that these
rights may be waived.
Current law includes 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, � 14.)
Current law 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
(More)
AB 618 (Furutani)
Page 3
Judicial Council, and procedures for determining good cause for
appointing and qualifying a noncertified interpreter. (Govt.
Code � 68564.)
This bill would codify existing law 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 proceeding as required by law. This includes a right not to
share an interpreter with a witness or 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 subdivision
may be waived, as specified.
This bill would codify existing law 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 that
there is good cause to question whether the continued use of the
interpreter in the proceeding may prejudice the rights of the
person charged with the crime such that it would not be in the
interest of justice or efficiency for the interpreter to
continue.
This bill provides that 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 non-certified interpreter.
This bill provides that the rights provided by this section may
only be waived expressly by the person charged if the waiver is
(More)
AB 618 (Furutani)
Page 4
affirmatively shown to be intelligent and voluntary.
This bill makes uncodified legislative findings and
declarations, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
(More)
AB 618 (Furutani)
Page 5
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
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.
The legal protections that ensure access to court
interpreters are spread throughout case law, statute
and the Constitution, and as a result, 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)
AB 618 (Furutani)
Page 6
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 about their right to an
interpreter, and it will help in training judges about
the law.
This bill makes clear that an accused cannot be forced
to share an interpreter with a witness since it would
interfere with a person's ability to comprehend the
proceeding. Additionally, AB 618 allows a person to
raise substantive mistakes made by interpreters.
Lastly, the bill prohibits the use of non-interpreter
court staff as interpreters, in response to stories of
(More)
AB 618 (Furutani)
Page 7
court clerks and others being asked to perform such
duties.
2. 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. Courts have long recognized that interpreters are
crucial to facilitate trial testimony for non-English speaking
defendants 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."
3. This Bill Codifies Case Law Establishing That A Party Has The
Right To An Exclusive Interpreter
Under existing law a criminal defendant may not be required to
share an interpreter with a witness. This bill would codify
that right. In addition, a defendant may not be required to
share an interpreter with another party or other person who has
a right to participate in the proceeding. (See, e.g., People v.
Rodriguez (1986) 42 Cal.3d 1005, 1015; People v. Chavez (1991)
231 Cal.App.3d 1471, 1477 �"Absent a knowing and intelligent
personal waiver of this right, even a "shared" interpreter
during any portion of the trial proceedings will constitute
error."]; People v. Estrada (1996) 176 Cal.App.3d 410, 415.)
The Supreme Court in Rodriguez considered the issue of whether
the trial court committed error when it used one interpreter to
interpret for two co-defendants. The Court concluded,
We believe that the best and preferred means of
avoiding further confusion is to require that each
(More)
AB 618 (Furutani)
Page 8
defendant have assigned to him an interpreter who
remains at his side throughout the proceedings, unless
such assistance has been waived. By so providing,
speculation regarding possible adverse consequences
arising out of shared or absent interpreters can be
avoided. (People v. Rodriguez, 42 Cal. 3d 1005, 1013
(1986), citation omitted.)
The Court then went on to consider the remedy to be applied in
that case and concluded that reversal of the defendant's
convictions was not required because it was not discernable from
the record of the trial that the use of a shared interpreter had
resulted in the defendants' being denied their right to a fair
trial. (Rodriguez, supra, at 1014-1015, footnote omitted.)
Therefore, although a defendant has a right to an individual
interpreter, a violation of that right does not necessarily
require reversal of the defendant's conviction. This bill would
do nothing to change that standard.
4. Challenges To Interpreter Competence
The right to an interpreter connotes a competent interpreter.
The bill also codifies the existing practice of requiring a
factual determination of the interpreter's competence, if the
court finds there is sufficient ground to challenge an
interpreter's performance during a hearing, so that rights are
not violated and the proceeding need not be repeated or the
result set aside, with attendant costs, to correct interpreter
errors.
5. 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
(More)
AB 618 (Furutani)
Page 9
entity or office with an interest in the outcome, such as the
local district attorney or jail, which is likewise prohibited by
the bill.
6. 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.
(More)
7. Suggested Amendment
The author may wish to consider the following technical
amendment for purposes of clarity. "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 proceeding as required by law the proceedings." (pg. 3,
lines 26-30.) This language more closely tracks the language of
Article I, section 14 of the California Constitution and could
prevent confusion as to what part of the sentence is modified by
the phrase, "as required by law."
8. Argument in Support
The Coalition for Humane Immigrant Rights of Los Angeles
(CHIRLA) states:
California's ethnic minority populations have grown
dramatically, especially among the Latino and Asian
communities. According to the new census data, the
Latino population grew by 28 percent, and the Asian
population grew by 31 percent. Furthermore, about 40
percent of Californians speak a language other than
English, and out of that 40 percent, half do not speak
fluent English. In a state as linguistically diverse
as California, specially trained court interpreters
are critical to ensuring that everyone has an
opportunity to fully participate in the judicial
process.
AB 618 seeks to enact the "Language Access Bill of
Rights," which updates the state's requirement to
provide an interpreter to any person participating in
criminal court proceedings, including a witness.
In 1974 California voters affirmed the requirement to
provide a court interpreter by adopting language in
our state's constitution. Since that time a series of
(More)
AB 618 (Furutani)
Page 11
court decisions have given full meaning to the
constitutional promise. AB 618 codifies the key
components of these decisions to provide statutory
clarity. As one court concluded, "A defendant who
cannot understand the proceedings taking place is not
truly present at his trial."
9. Argument in Opposition
Judicial Council of California states:
The requirement that exclusive interpretation service
be provided causes concern because of the impact it
would have on proceedings involving multiple
defendants who require interpreter services. While it
is clear from case law that it is not appropriate for
a defendant to share an interpreter with a witness
unless that defendant expressly authorizes such
sharing, the case involving sharing among
co-defendants have taken a more nuanced approach that
does not lend itself to codification. The council
recognizes that a defendant needs to be able to have
an interpreter sufficiently available to allow
communication with counsel and the court, but it is
not clear that meeting this requirement requires
unique interpreters for each defendant in every case.
Currently, courts do, on a case-by-case basis, make a
determination as to the number of interpreters that
are required in a given setting. Trying to set a
bright line rule to define those proceedings or
circumstances in which it would be prohibited for
defendants to share an interpreter will only lead to
significant delays in these proceedings, and a
significant increase in the cost of providing these
services.
***************
AB 618 (Furutani)
Page 12