BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2370 (Chau)
As Amended June 9, 2014
Hearing Date: June 17, 2014
Fiscal: No
Urgency: No
RD
SUBJECT
Court Interpreters
DESCRIPTION
This bill would require specified information, including name
and language to be interpreted, to be stated on the record when
the court uses a qualified, certified, or registered court
interpreter in a court proceeding or deposition. The
information would be specific to whether the interpreter being
used is a certified or registered court interpreter, or is a
qualified interpreter where a certified or registered court
interpreter is unavailable.
BACKGROUND
Both federal and state law prohibit any person, on the basis of
race, national origin, ethnic group identification, religion,
age, sex, sexual orientation (state law only), color, genetic
information (state law only) or disability, from being
unlawfully excluded from participation in, being denied the
benefits of, or being subjected to discrimination under any
program or activity that is funded by the state or receives
federal financial assistance. This includes conduct that has a
disproportionate effect upon persons of limited-English
proficiency. (42 U.S.C. Sec. 2000d et seq.; Gov. Code Sec.
11135.)
California is home to a vast number of non-English and
limited-English speakers. Dating back to at least 1992, the
State Legislature has statutorily recognized "that the number of
non-English-speaking persons in California is increasing, and
(more)
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recognizes the need to provide equal justice under the law to
all California citizens and residents and to provide for their
special needs in their relations with the judicial and
administrative law system." (Gov. Code Sec. 68560(e).)
Furthermore, the 2010 census demonstrated that this state is one
of the most diverse in the nation with 38 percent of its
population being Hispanic, 13 percent Asian, and 6 percent
African American. In addition, the census reflected that 27
percent of Californians (9.9 million) are foreign born with 20
percent of the population considered to have limited-English
proficiency. Meaningful access to the courts for these
individuals, as required under law, hinges on the services of
court reporters who possess the requisite skills to accurately
translate legal proceedings between the court, the attorney, and
the non-English speaker.
To facilitate non-English speaking individuals' access to
justice, California law provides for the certification and
registration of court interpreters, and permits the use of
qualified interpreters where no certified or registered court
reporters are available. This bill, sponsored by the California
Federation of Interpreters, seeks to help verify qualifications
of interpreters by requiring certain information to be stated on
record in any court proceeding or deposition that a court
reporter is used.
CHANGES TO EXISTING LAW
Existing law provides that except for good cause, any person who
interprets in a court proceeding using a language designated by
the Judicial Council pursuant to specified law, shall be a
certified court interpreter as defined, for the language used.
(Gov. Code Sec. 68561(a).) Existing law provides that a court
may for good cause appoint an interpreter for a language
designated by the Judicial Council who does not hold a court
interpreter certificate and that the court must follow the good
cause and qualification procedures and guidelines adopted by the
Judicial Council. (Gov. Code Sec. 68561(c).)
Existing law provides that any person who interprets in a court
proceeding using a language not designated by the Judicial
Council shall be qualified by the court pursuant to the
qualification procedures and guidelines adopted by the Judicial
Council. If this qualified interpreter also passes an English
fluency examination offered by a testing entity approved by the
Judicial Council, the person shall be designated a "registered
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interpreter." (Gov. Code Sec. 68561(d).)
Existing law requires that interpreters establish to the court
that they meet the requirements above under procedures adopted
by the Judicial Council. The court record shall show that the
interpreter: (1) is a certified court interpreter, as defined,
for the language used; or (2) was qualified by the court, as
specified under existing law above, after a finding of good
cause, or pursuant to existing law above, where the language is
not designated by Judicial Council. (Gov. Code Sec. 68561(e).)
Existing law provides that a natural person who either: (1)
holds a valid certificate as a certified court interpreter
issued by a certification entity approved by the Judicial
Council; or (2) until January 1, 1996, is named and maintained
on the list of recommended court interpreters previously
established by the State Personnel Board or established by an
entity provisionally approved under existing law, shall be
designated a "certified court interpreter." Existing law
prohibits any other person or entity from using the title
"certified court interpreter" or representing that he or she or
it is certified to interpret in or for the courts. (Gov. Code
Sec 68566.)
Existing law requires the Judicial Council to adopt rules and
standards to implement the law on court interpreter services and
to establish the following:
standards for determining the need for a court interpreter in
particular cases;
standards for ensuring a court interpreter's understanding of
the legal and technical terminology and procedures used in the
courts;
procedures for certified interpreters to establish their
qualifications on the court record, pursuant to existing law;
procedures and guidelines for determining good cause to
appoint an interpreter for a language designated by the
Judicial Council who is not certified, and for qualifying such
an interpreter, pursuant to existing law above;
procedures and guidelines for qualifying an interpreter for a
language not designated by the Judicial Council, pursuant to
existing law above;
rules, standards, and legal forms for establishing on the
record an interpreter's qualifications, and for establishing
on the record the court's efforts to obtain a certified court
interpreter if the court proposes using an interpreter who is
not a certified court interpreter; and
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a procedure for Judicial Council and local court review of
each court interpreter's skills and for reporting to the
certification entity the results of the review. (Gov. Code
Sec. 68564.)
This bill would provide that in any court proceeding, if a court
uses a qualified interpreter, as specified, the judge must
require the following to be stated on the record:
a finding that a certified or registered court interpreter is
not available;
the name of the qualified interpreter;
a statement that the qualified interpreter meets the
requirements of existing law, as specified, and that the
required procedures and guidelines adopted by the Judicial
Council have been followed; and
a statement that the interpreter's oath was administered to
the qualified interpreter pursuant to the procedures and
guidelines adopted by the Judicial Council.
This bill would provide that in any court proceeding, if a court
uses a certified court interpreter, as defined under existing
law, or a registered court interpreter, the judge in the court
proceeding must require the following to be stated on the
record:
the name of the certified or registered court interpreter, as
listed on his or her court interpreter certification or
registration;
the status of his or her interpreter certification or
registration, including his or her current certification or
registration number;
a statement that the certified or registered court
interpreter's identification has been verified by the court
using a certified or registered interpreter identification
badge issued by the Judicial Council or other documentation
that verifies the interpreter's certification or registration
accompanied by photo identification;
the language to be interpreted; and
a statement that the interpreter's oath was administered to
the certified or registered court interpreter or that he or
she has an oath on file with the court.
This bill would provide that in a deposition where a judge is
not present to fulfill the above requirements, a qualified
interpreter, as specified, must state all of the following for
the record:
his or her name;
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the language to be interpreted;
a statement that the interpreter's oath was administered; and
a statement that all Judicial Council procedures and
guidelines have been followed.
This bill would provide that in a deposition where a judge is
not present to fulfill the above requirements, a certified or
registered interpreter shall state all of the following for the
record:
his or her qualifications, including his or her name and
certification or registration number;
a statement that the interpreter's oath was administered to
him or her or that he or she has an oath on file with the
court; and
a statement that he or she has presented both parties the
interpreter certification or registration badge issued to him
or her by the Judicial Council or other documentation that
verifies his or her certification or registration accompanied
by photo identification.
COMMENT
1. Stated need for the bill
According to the author:
AB 2370 establishes a procedure for courts to better identify
certified [and] registered interpreters in all court
proceedings.
Nearly seven million Californians cannot access the courts
without significant language assistance. As the population of
limited[-]English proficient individuals and the demand for
court interpreters increases in California, and as the
Judicial Council continues to take action to expand the use of
certified court interpreters to meet federal compliance
standards, it is crucial to have identification procedures in
place for judges to better verify the qualifications of
interpreters in court proceedings.
Under current law, local courts are required to follow
procedures to identify certified/registered [versus]
non-certified interpreters. Non-certified interpreters may
only be assigned when a certified interpreter is unavailable.
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[ . . . ] AB 2370 will increase accountability for using
certified/registered court interpreters and prevent any
misrepresentation of certification or registration by
requiring a judge to direct the interpreter to state, for the
record, their name and certification/registration status, show
photo identification, identify the language that will be
interpreted and verify the filing of their oath with the
court. (Footnote citations omitted.)
The California Federation of Interpreters (CFI), sponsor of this
bill, writes that the bill will "increase the accuracy in
determining whether a court proceeding has received services for
a certified court interpreter by establishing a comprehensive
procedure for courts to better identify certified interpreters."
CFI adds that "[w]hile the landscape for language access
standards nationwide is changing, due to the U.S. Department of
Justice's enforcement of language access requirements,
California's Judicial Council has taken action to begin
expanding the use of certified court interpreters to meet
federal compliance standards. However, current identification
standards, established by Rule of Court 2.893, have been
ineffective in directing local courts on the best practice for
identifying the certification of a court interpreter. Without
comprehensive procedures, judges have struggled to recognize
when an interpreter is not certified and when there is a need to
follow court procedures for qualifying a non-certified
interpreter for a court proceeding."
2. Ensuring that interpreter qualifications can be verified
This bill seeks to require in both court proceedings and in
depositions where judges are not present, certain information
identifying the qualified, certified, or registered interpreter
be included as part of the record.
For example, when a "certified interpreter" or "registered
interpreter" is used in a court proceeding, the judge in that
proceeding must state on record not only the language to be
interpreted and the name of the certified or registered court
interpreter (as listed on his or her certification or
registration), but also the status of that interpreter's
certification or registration and a statement that the
interpreter's identification has been verified, and that the
interpreter's oath was administered or that he or she has an
oath on file with the court. In contrast, when a "qualified
interpreter" is used, this bill would require a judge to record
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a finding that a certified or registered court interpreter is
not available, as well as the name of the qualified interpreter;
a statement that the qualified interpreter meets the
requirements of existing law and that the required procedures
and guidelines adopted by the Judicial Council have been
followed; and a statement that the interpreter's oath was
administered to the qualified interpreter pursuant to the
procedures and guidelines adopted by the Judicial Council.
Ensuring a qualified interpreter's certification, registration
status, and other qualifications in the absence of a certified
or registered interpreter, is significant both in terms of
ensuring the accurate translation services are being provided
and because statutory law generally does not allow just anyone
to act in the official capacity of a court interpreter. There
is also precedent for recording certain information relating to
the court interpreter being used in specified court proceedings
under current Rules of Court. Specifically, Rule 2.893
requires, in criminal cases or juvenile delinquency proceedings,
that the court record reflect certain information about
certified and non-certified interpreters, such as the name of
the interpreter and the language to be interpreted, and the fact
that the interpreter is certified (or not certified) to
interpret in the language to be interpreted, and whether the
interpreter was administered the interpreter's oath.
That being said, the California Federation of Interpreters
(CFI), sponsor, asserts that the identification standards
established by Rule of Court have been ineffective and that, in
the absence of comprehensive procedures, judges have struggled
to recognize when an interpreter is not certified and when there
is a need to follow court procedures for qualifying a
non-certified interpreter for a court proceeding. CFI adds:
When courts fail to provide certified or competent court
interpreters to limited-English proficient (LEP) individuals
who can neither communicate nor understand what is happening
in court struggle to protect their children, homes and safety.
According to the 2010 Census, California is the most populous
state in the nation with over 37 million people, and home to
one of the world's most diverse populations, 38 [percent]
Hispanic, 13 [percent] Asian, and [six percent] African
American.
Competent and certified court interpreters provide
limited-English-speaking individuals guidance for navigating
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through the legal system and assistance in protecting their
rights. Without interpreters, the extreme difficulties
involved in participating in California's justice system
forces many of California's most vulnerable populations to
forego their rights rather than attempt to overcome language
barriers and other obstacles.
This bill would not only help ensure an interpreter's
qualifications, certification, or registration be reviewed in
each instance that a court interpreter is used in a court
proceeding or deposition, but in doing so, it would also help
verify that the non-English speaker in a case had the services
of a qualified court interpreter available as required under
existing law.
3. Interpreter's oath
Among the information that must be provided on record, are
statements relating to interpreters' oaths. For certified or
registered interpreters, the court record must reflect a
statement that the interpreter's oath was administered to the
certified or registered court interpreter or that he or she has
an oath on file with the court. For qualified interpreters, the
record must reflect that the interpreter's oath has been
administered.
CFI explains the need for such statements, and the distinction
between the two statements depending on whether or not the
interpreter is "certified" or "registered" as opposed to
"qualified," writing that:
Existing law allows courts to hire staff interpreters as well
as contract with independent interpreters in order to meet the
need for language access services for limited-English
proficient (LEP) individuals. Upon hiring, a staff interpreter
is administered an oath, that he or she will make a true
interpretation, by a judge. That oath is signed by the
interpreter then put on file with the court. This process is
referred to as having an "oath on file" and provides
efficiency so that staff interpreters do not have to
administer a new oath each time they are needed for a court
proceeding. Only staff interpreters are permitted to keep an
"oath on file."
However, since currently the only requirement for an
interpreter to identify their certification is to state for
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the record that they have an "oath on file" there is ample
opportunity for non-certified interpreters to take advantage
of this weak identification process by misrepresenting that
they too have an "oath on file" and therefore skipping the
necessary procedures that would qualify them as competent to
interpret. AB 2370 would help prevent this misrepresentation
by non-certified
interpreters.
Speaking from personal experience, one individual (a practicing,
certified court interpreter of over 20 years) relays that:
In my area (Alameda County) non-certified interpreters
sometimes accompany parties to court and a few just show up at
the Hayward courthouse or the family law courthouse in Alameda
offering to interpret for a fee for limited-English proficient
LEP court users. These individuals appear in court and 'pass'
as professional interpreters, when in fact they are not, and
no one questions their qualifications. They are not trained
or necessarily competent interpreters, they are not bound by
the professional code of conduct that certified interpreters
follow, and they do not inform the LEP court users of
requirement that interpreters appointed in court cases be
certified. Some of these individuals go beyond the appropriate
role of an interpreter, offering legal advice they are not
qualified to give. Often, they are not fully competent to
provide a complete and accurate interpretation for the benefit
of the court, the LEP court user and other parties in a case.
I have also worked as an interpreter representative around the
state and I can attest that this is not an uncommon situation.
One of my colleagues recently learned that a non-certified
interpreter was fraudulently using her name and certification
number, posing as a fully qualified interpreter for several
years before she was caught.
Again, because the language barrier is also a barrier to access
to justice for non-English speaking or LEP individuals, and
because the state must ensure that such barriers are removed,
such practices are particularly disconcerting and problematic.
Arguably, this bill would help curb such fraudulent practices
because the person would have to present identification
demonstrating that they are the person they say they are. This
would in turn help ensure that non-English speakers or LEP
individuals receive the services they are entitled to as a
matter of law.
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4. Author's amendments
To avoid any misinterpretations of the law, the author proposes
to amend the bill as follows:
Author's amendment
On page 3, lines 25-27, amend the bill to read: "(f) In any
court proceeding, if a court uses appoints an interpreter who
is qualified pursuant to subdivision (c) or (d) , or an
interpreter pursuant to subdivision (d) who is not registered ,
the presiding judge in the court proceeding shall require the
following to be stated on the record:"
To address workability issues, the author also proposes to amend
the bill to remove the provisions relating to verification of
qualified interpreters in depositions:
Author's amendment
On page 4, strike lines 21-29, inclusive and renumber
accordingly
Support : California Immigrant Policy Center; three individuals
Opposition : None Known
HISTORY
Source : California Federation of Interpreters
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 62, Noes 12)
Assembly Judiciary Committee (Ayes 9, Noes 1)
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