Journal of Criminal Law and CriminologyVolume 68Issue 1 March Article 2

Spring 1977

No Comprendo: The Non-English-SpeakingDefendant and the Criminal ProcessJoan Bainbridge Safford

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Recommended CitationJoan Bainbridge Safford, No Comprendo: The Non-English-Speaking Defendant and the Criminal Process, 68 J. Crim. L. &Criminology 15 (1977)

THE JOURNAL OF CRIMINAL LAW &c CRIMINOLOGY

Copyright © 1977 by Northwestern University School of LawVol. 68, No. 1

Printed in U.S.A.

NO COMPRENDO: THE NON-ENGLISH-SPEAKING DEFENDANT AND THECRIMINAL PROCESS

JOAN BAINBRIDGE SAFFORD*

The non-English-speaking defendant in acriminal proceeding poses increasing problemsfor the administration of criminal justice. Mi-norities for whom English is not the principallanguage or who speak such unusual dialects ofEnglish as to cloud understanding and commu-nication make up a discouraging proportion ofoffenders.' In areas of large ethnic enclaveswhere English is not the dominant tongue, offi-cials have estimated that between thirty andforty per cent of criminal defendants requirethe aid of an interpreter fully to understand theproceedings against them. 2

Thirty-five states make some statutory provi-sion for appointment of interpreters in speci-fied cases .3 The Illinois statute is typical of one

* J. D., Northwestern University School of Law,Office of Illinois Attorney General, Criminal JusticeDivision.

I NATIONAL ADVISORY COMMISSION ON CRIMINALJUSTICE, STANDARDS AND GOALS, COMMUNITY

CRIME PREVENTION 151 (1973).2 Testimony before the U.S. Commission on Civil

Rights 118, in Los Angeles (Aug. 17, 1968).3 States not providing for language interpreters

are: Alabama, Colorado, Maine, Missouri, Montana,Nebraska, New Hampshire, Oklahoma, Pennsylva-nia, Rhode Island, South Carolina, Tennessee, Ver-mont, Washington and West Virginia. Louisian.makes provision for interpreters only in trials of statmilitary personnel. LA. REV. STAT. ANN. § 29:12(West 1975). Pennsylvania makes provision for appointment of interpreters to aid the court in th.Court of Common Pleas only. PA. STAT. ANN. tit. 17§ 1875 (Purdon 162).

A number of states make generous provisions fordeaf persons in criminal cases, but do not make anyof the same provisions for those with language diffi-culty. E.g., W. VA. CODE §57-5-7 (1974 Supp.);CONN. GEN. STAT. ANN § 17-137 k (West 1975): "(a)In any criminal or civil action involving a deaf person,the court shall appoint a qualified interpreter to assistsuch person throughout such proceeding." The onlyother relevant Connecticut statute relates to compen-sation of interpreters. Nebraska expressly recognizesthat appointment of an interpreter for the deaf isnecessary to protect the constitutional right of thedefendant to participate in the preparation and trialof his case, yet the constitutional rights of the non-English speaking defendant are not considered. NEB.REV. STAT. § 25-2401 to § 25-2406 (1975). CompareARIZ. REV. STAT. § 12-242 A-D (1974), providing for

group:

Whenever any person accused of committing afelony or misdemeanor is to be tried in any courtof this State, the court shall upon its own motionor that of the defense or prosecution determinewhether the accused is capable of expressinghimself in the English language so as to be un-derstood directly by counsel, court or jury. Ifthe court finds the accused incapable of so un-derstanding or so expressing himself, the courtshall appoint an interpreter for the accusedwhom he can understand and who can under-stand him.

4

compulsory appointment of qualified interpreters forthe deaf, with ARIZ. REV. STAT. § 12-241 and § 11-601(5), providing for discretionary appointment of lan-guage interpreters with no reference to standards.

4 ILL. REV. STAT. ch. 38, § 165-11 (1975). TheIllinois statute is similar to section 752, chapter 4 ofthe California Evidence Code which provides for in-terpreters for witnesses. See CAL. EvID. CODE §752(a) (West 1966). More common and the form Illi-nois used until 1973 are statutes patterned after rule28 of the Federal Rules of Criminal Procedure:

The court may appoint an interpreter of its ownselection and may fix the reasonable compensa-tion of such interpreter. Such compensation shallbe paid out of funds provided by law or by thegoverment, as the court may direct.

FED. R. CRIM. P. 28. E.g., ARIZ. REV. STAT. § 12-241 (1956); DEL. CT. C.P.R. 28; HAW. REV. STAT.§ 606.9 (1969); IND. R. TR 43 (F); MISS. CODE ANN.§ 99-17-7 (1972); OHIO REV. CODE ANN. § 2301.12(Supp. 1974).

Most protective of the non-English-speaking de-fendant are statutes similar to Michigan's:

If any person is accused of any crime or misde-meanor and is about to be examined or triedbefore any justice of the peace, magistrate orjudge or a court of record and it appears to themagistrate or judge that such person is incapableof adequately understanding the charge or pre-senting his defense thereto because of a lack ofability to understand or speak the English lan-guage or inability adequately to communicate byreason of being deaf and/or mute, or that suchperson suffers from a speech defect or otherphysical defect which handicaps such person inmaintaining his rights in such cause, the justiceof the peace, magistrate or judge shall appoint aqualified person to act as an interpreter. ...

MICH. STAT. ANN. § 28.1256 (1) (1971).See also ARE. STAT. ANN. § 5-715 (1976); IOWA

JOAN BAINBRIDGE SAFFORD

Standards for interpretation are almost non-existent. Illinois requires the interpreter toswear "to truly interpret or translate all ques-tions propounded or answers given as directedby the court."' But if the interpreter is translat-ing off-the-record for the benefit of the de-fendant, there is no check on the accuracy ofthe translation.

Almost nowhere is statutory provision madefor interpreters at early stages after arrest.6 Inalmost every jurisdiction, once criminal chargesare lodged the judge is given broad latitude todecide whether to appoint an interpreter, whileno regular procedures are prescribed for deter-mining need.7 Reviewing courts rarely questionthe trial judge's decision if there is any evidenceat all of the defendant's ability to understand orspeak some English, or if any translation hasbeen provided. When an appeal is made on thebasis of a constitutional claim that the defend-ant did not understand the proceedings or thatthey were inadequately translated to him, thereis no record of what the defendant heard andunderstood to settle the very question raised forreview.

This article examines the problems inherentin arresting, setting bail for, arraigning, accept-ing a plea from and trying a defendant whoseability to understand and express himself in

CODE Ann. § 622 A.1-1-6 (Supp. 1970); KAN. STAT.ANN. § 75-4351 to § 75-4355 (Supp. 1975); MD. ANN.

CODE art. 27, § 623 (a) (1968).The New Mexico Constitution provides: "In all

criminal prosecutions, the accused shall have theright . . . to have the charge and testimony inter-preted to him in a language he understands." N. M.CONST. art. 2, § 14.

Certain West Texas border counties make provi-sion for conducting the proceedings in Spanish withEnglish interpreters. TEx. STAT. ANN. art. 3737 d-1(Supp. 1976).

ILL. REV. STAT. ch. 38, § 165-12 (1976).6 Kansas is unique in prohibiting interrogation

without an interpreter if the defendant's "primarylanguage is one other than English .... KAN. STAT.ANN. § 75-4351 to § 75-4355 (Supp. 1975).

7 MISS. CODE ANN. § 99-17-7 (1972) is typical:Interpreters.In criminal cases, the court may appoint an inter-preter when necessary, sworn truly to interpret,and allow him a reasonable compensation, notexceeding five dollars per day, payable out of thecounty treasury.For a discussion of problems of trying a non-Eng-

lish-speaking defendant see Comment, Right to anInterpreter, 25 RUTGERS LAW REVIEW 145 (1970);Comment, Constitutional Law: Translators: Mandatory

for Due Process, 2 CONN. L. REV. 163 (1969).

English is minimal or non-existent. A criticalexamination of the Illinois statutes on inter-preters and Illinois decisions on the constitu-tional questions raised by failure to provide aninterpreter suggests that Illinois is far behindthe federal courts and the courts of some otherstates in protecting the interests of linguisticallyhandicapped criminal defendants. Yet in thosecourts in Cook County where a professionalinterpreter is regularly available, there is devel-oping a judicial practice of calling upon theinterpreter when there is any indication ofneed, even at an early stage in the proceedings.This is far more than is required by Illinoisdecisions and even beyond that practice sug-gested by various circuits of the United StatesCourt of Appeals. Although concentrating par-ticularly on the problems of the Spanish-speak-ing defendant, a member of the largest linguis-tic minority in Cook County, this article makescriticisms and recommendations that applyequally as well to the handling of the case of anynon-English-speaking defendant.

SCOPE OF THE PROBLEM

The 1970 decennial census revealed thatmore than thirty-three million residents of theUnited States reported that their "mothertongue" was a language other than English."More than twenty-two million residents wereeither first generation or second generation im-migrants of foreign-speaking parentage.9

Puerto Ricans, who are considered "native," arenot included in this figure. As the 1970 census isknown to have ignored large numbers of urbanpoor, 0 and as the foreign-speaking are largelyconcentrated in the metropolitan areas of thecountry, the number for whom English is notthe primary language could be much higher.Some scholars have estimated the number ashigh as twenty-six million."

8 "Mother tongue" means language spoken duringchildhood. UNITED STATES DEPARTMENT OF COM-

MERCE, BUREAU OF THE CENSUS, 1970 CENSUS OF

POPULATION, COUNTRY OF ORIGIN, MOTHERTONGUE, AND CITIZENSHIP OF THE UNITED STATES 1(Supp. 1974) [Publications from the 1970 census arehereinafter cited as 1970 CENSUS OF POPULATION to-

gether with the title of the special publication].9 Id. at 3, Table 193.i" N.Y. Times, Nov. 30, 1975, § 4, at 7, col. 1.

Estimates of the number of urban poor not countedin the 1970 census range as high as nine millionpersons.

" 2 T. ANDERSON & M. BOYER, g BILINGUALSCHOOLING IN THE UNITED STATES 25 (1970).

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THE NON-ENGLISH SPEAKING DEFENDANT

Although significant portions of this popula-tion probably have little or no language diffi-culty with English, those who have grown up inlarge and expanding ethnic neighborhoods,those who have migrated back and forth to theUnited States from Mexico or Puerto Rico, orthose whose work groups them with others ofthe same language, have not had the same pushto linguistic assimilation which other genera-tions have experienced.

2

More than nine million people identified bythe 1970 census considered Spanish their firstlanguage or came from a household in,whichthe father or mother was reported to haveSpanish as a mother tongue.'2 This figure isundoubtedly low. In 1974, the Immigration andNaturalization Service estimated that therewere between four and five million illegal aliensin the United States. In December, 1975, theestimate was eight million, the vast bulk of themSpanish-speaking'

4

Sheer numbers have led to an infrastructurewithin the Spanish-speaking community whichprotects but also isolates the Spanish speakerfrom the English-speaking community." InSan Antonio, sixty-two per cent of those low-income Mexican-Americans living in censustracts with more than 400 Spanish-speakingpeople could speak little or no English. A simi-lar survey in census tracts in Los Angeles withhigh concentrations of low-income Mexican-Americans revealed that fifty-one per cent ofthe residents could not speak any English. 6

Another study of Puerto Ricans in New Yorkfound more than seventeen per cent of thechildren and presumably almost twice thatnumber of adults spoke little or no English. 7 A

12 L. GREBLER, J. MOORE AND R. GUZMAN, THE

MEXICAN-AMERICAN PEOPLE at 87-94, 424-427 (1970)[hereinafter cited as GREBLER]. See generally, LAN-

GUAGE LOYALTY IN THE UNITED STATES (J. Fishmaned. 1966).

13 1970 CENSUS OF POPULATION, PERSONS OF SPAN-ISH ANCESTRY, PERSONS OF SPANISH LANGUAGE BY

REGIONS, DIVISIONS AND STATES 9, Table 3 (Supp.1973).

" Hearings Before the Subcomm. on Immigration of theComm. on the Judiciary, 93d Cong., 2d Sess. 37 (Apr. 3and June 25, 1974); Leonard F. Chapman, Comm'r,Immigration & Naturalization Service, quoted in N.Y.Times, Dec. 21, 1975, § 1, at 27, col. 1.

15 Comment, "Citado a Comparacer": Language Bar-riers and Due Process-Is Mailed Notice in English Consti-tutionally Sufficient?, 61 CAL. L. REv. 1394, 1400(1973).

16 GREBLER, supra note 12, at 424, Table 18-I.17 U.S. PUERTO Rico COMM'N ON THE STATUS OF

study of Spanish-speaking people in the south-west revealed that they averaged little morethan eight years of education. When studentsleft school, nearly three-fourths of them werebelow grade level. 18 Inadequately equipped byeducation and disabled by language from tak-ing jobs outside of the Spanish-speaking com-munity, they lost much of the English whichthey had learned, and became further iso-lated. 9

The large number of Spanish-speaking resi-dents in Chicago and their high concentrationin certain areas of that city suggest the sameexperience of linguistic isolation. The 1970 cen-sus counted 247,343 Spanish-speaking residentsin the city of Chicago; 2 some estimate thatthere may be at least another 100,000.21 Fifty-three census tracts in the city were reported tohave 400 or more Spanish-speaking residents .22

Income and education levels among this groupare low.2 3 But even rising income, the usualroute out of ethnic isolation, has affected Span-ish-speaking residents less than earlier groups.Among white Spanish-speaking residents inChicago above the poverty line, more than

PUERTO Rico, STATUS DE PUERTO Rico 152 (1966)[herinafter cited as STATUS OF PUERTO Rico]. Only 58per cent of Puerto Rican children in the New Yorkschools were rated fluent in English.

'8 U.S. CIVIL RIGHTS COMM'N, THE UNFINISHED

EDUCATION (1971). Among those who remain inschool, 63 per cent are below grade level and 40 percent have severe reading retardation (two or moreyears below grade level). Id. at 25-26.

19 GREBLER, supra note 12, at chs. 5, 7, 18.20 1970 CENSUS OF POPULATION, SOCIAL CHARAC-

TERISTICS OF THE POPULATION. CHICAGO, ILL. 119,

Table P-2. Almost one million residents of Chicagowere of foreign or mixed parentage, or foreign-born.Id. The 1960 CENSUS did not count Spanish-languageresidents, 1960 CENSUS OF POPULATION, CENSUS

TRACTS, CHICAGO, ILL. 19, Table P-I, but thePuerto-Rican population in Chicago had increasedfrom 32,371 to 78,826 in 1970, the Mexican from44,600 to 107,925. 1970 CENSUS OF POPULATION, PER-

SONS OF SPANISH ORIGIN 165, Table 14.2' Telephone interview, U.S. Immigration & Natu-

ralization Service, Inspectors Division, (Nov. 4, 1975).22 1970 CENSUS OF POPULATION, ECONOMIC CHAR-

ACTERISTICS OF PERSONS OF SPANISH LANGUAGE 559-568, Table P-8.

' Median income for a Spanish-language family ofmedian size, 4.63 persons, was $8,983; median yearsof school, 9.2. The figures are markedly lower forPuerto Rican heads of households of whom only15.9% completed high school. 1970 CENSUS OF POPU-

LATION, PERSONS OF SPANISH ORIGIN, FAMILY IN-

COME, POVERTY STATUS 180 (Table 16, income), 112(Table 9, education).

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JOAN BAINBRIDGE SAFFORD

twenty-seven per cent continue to live in Span-ish-speaking, low-income areas.2 4

The inability to cope in any but the mostcursory way with the demands of the dominantculture affects the non-English-speaking resi-dent in a host of areas, 2 but it is in confronta-tions with the law that the risks of incompre-hension are highest. A study of the genesis ofNew York policemen's abuses of power re-vealed that many officers interpreted the Span-ish-speaking resident's failure to answer theirquestions as a form of defiance. 26 One police-man told New York Civil Liberties Union law-yers that when a young Puerto Rican had an-swered an officer's questions in Spanishprompting laughter among his companions,the officer had slapped the boy to "maintain hisauthority." 7

This same phenomenon was reported by theCalifornia State Advisory Committee to theUnited States Commission on Civil Rights.28 Ina series of cases where Spanish-speaking per-sons failed to comprehend what was said, thepolicemen were enraged by the lack of responseto orders. 29 In Chicago, a Mexican-American,arriving at school late in the afternoon to seeabout his brother's truancy, asked directions tothe principal's office and was ordered out of theschool by an off-duty policeman serving as aschool guard. He apparently misunderstood

24 1970 CENSUS OF POPULATION, Low INCOMENEIGHBORHOODS IN LARGE CITIES, CHICAGO ii(Supp. 1974). Only 16 per cent of non-Spanish-lan-guage whites who were below the poverty level livedin such neighborhoods. Id. In the low income neigh-borhood with the highest proportion of Spanish-lan-guage residents, Neighborhood 3 (41%), more than60 per cent of the Spanish-language whites wereabove the poverty level. Id. at 1, Table A-1. MoreMexicans live in Chicago than anywhere outside theSouthwest. Only New York City has more PuertoRicans. ILL. STATE ADVISORY CoMiMn. TO THE U.S.

COMM'N ON CIVIL RIGHTS, BILINGUAL/BICULTURAL

EDUCATION 4 (1974).25 Liebowitz, English Literacy: Legal Sanction for Dis-

crimnination, 45 NOTRE DAME LAW. 7, 51-67 (1969)(catalogues state statutes and regulations requiringknowledge of English).

26 P. CHEVIGNY, POLICE POWER 69 (1969).271 Id. at 70. A similar incident happened when

Haitian youths spoke Creole when approached bypolice.

" U.S. CIVIL RIGHTS COMM'N, MEXICAN AMERI-CANS AND THE ADMINISTRATION OF JUSTICE IN THE

SOUTHWEST 66 (1970) [hereinafter cited as MEXICANAMERICANS AND THE ADMINISTRATION OF JUSTICE].

21 1d. at 67.

and pushed past toward the principal's office,leading to a fight and an assault charge."0

The Civil Rights Commission concluded aftera series of hearings that the source of the trou-ble is often that the English-speaking policemancannot comprehend the Spanish-speaker's in-tent from his speech.3 ' The regular rise and fallof the Spanish intonation pattern, when accen-tuated by excitement, may be interpreted as aharangue. Thus, during a riot in East Los An-geles when police overheard a young Mexicanattempting to quiet the crowd, they assumedthat he was agitating it and arrested him.32 Fi-nally, misinterpretation of words similar tothose ;n English can lead to miscomprehensionand tragic consequences. When a mother com-plained to the police that her husband haddrunkenly struck their daughter, the policetook this to mean that the father was sexuallymolesting the child and arrested him. Under-standing almost no English, the father did notobject to the charge. The father remained injail two months unable to make bail.3 3 In Chi-cago, with a Spanish-speaking population of atleast 9.4 per cent and a police force with fewerthan 200 Spanish-speaking officers, 34 the po-tential for these misunderstandings is enor-mous.

More often, of course, arrest results not frommisunderstanding but from probable cause.Once an arrest has been made, an interpretermay be necessary to warn the defendant of theright to counsel and the right to remain silent,and for effective questioning if those rights arewaived. If the defendant speaks some English,it is almost impossible to show later that thewarning was not understood or the waiver un-knowing. Only Kansas requires appointment of

30 Case of Carlos R., Nw. U. Legal Assistance Clinic

(April 14, 1974).31 MEXICAN AMERICANS AND THE ADMINISTRA-

TION OF JUSTICE, supra note 28, at 68.32 Id.33 Id. at 70.11 Telephone interview with Richard Phelan, Ass't

Corp. Counsel, City of Chicago (Dec. 5, 1975). As of1974, only one per cent of Chicago's police force was"Hispanic." During 1971-73, only twenty-three His-panic officers were added to the police force. UnitedStates v. City of Chicago, 385 F. Supp. 543, 548-49(N.D. Il1. 1974). At the City of Chicago Police Depart-ment, 14th District, located in a Latino neighbor-hood, there were only two Spanish-language officersas of June, 1974. Interview with Police Officer Durr,(July 9, 1974).

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THE NON-ENGLISH SPEAKING DEFENDANT

an interpreter at this time. 35 Arizona requiresthat upon the arrest of a deaf-mute, no interro-gation of any kind shall take place prior toappointment of an interpreter and that therebe a formal determination of the interpreter'scompetence. 36 But Arizona does not requirecomparable protection for the non-English-speaking defendant. No case in Illinois has heldthat the Illinois statute requires appointment ofa language interpreter at the time bail is set forthe defendant, although it could be argued thatthe determination of whether bail is excessive,in violation of the eighth amendment, cannotbe made if the court is unable to communicatewith the defendant.

3 7

In People v. Macias,3 s the defendant, whospoke no English, and her companions, werecharged with aggravated assault and carrying aconcealed weapon. Taken before the magis-trate at 2:00 A.M., the defendant was unable toexplain that she had no arrest record, had beenregularly employed for four years, had lived atthe same address for three years, and was themother of a three-year-old child whom she hadleft with a babysitter when she went to workthat evening. All these were factors which theBail Reform Act of 1966'9 suggested would beproper ones to weigh when consideringwhether to grant bail and which might haveaffected the judgment of the court that night asto the bond required. But until May, 1975, nointerpreter was available in any Illinois court atthis stage of the proceedings. 40

KAN. Stat. ANN. § 75-4351 (Supp. 1975):A qualified interpreter shall be appointed in

the following cases for persons whose primarylanguage is one other than English, or who aredeaf or mute or both:

(e) .... When such person is arrested for analleged violation of a criminal law of the state orany city ordinance. Such appointment shall bemade prior to any attempt to interrogate or takea statement from such persons.36 ARIZ. REV. STAT. ANN. 12-242 B (Supp. 1976).37 In Stack v. Boyle, 342 U.S. 1 (1951), the Supreme

Court held that bail set at an amount more than isreasonably necessary to assure the defendant's ap-pearance at trial is excessive.

as No. 74-01764 (Cook County Criminal Court,1974). Macias remained in the Cook County House ofCorrection, Division 3, for more than three weekswithout being provided an interpreter. Informationobtained from the Nw. U. Legal Assistance Clinic(June, 1974).

9 18 U.S.C. § 3146(b) (1970).40 In May, 1975, at the urging of the Cook County

It also appears that no right to an interpreterat the preliminary hearing is recognized by theIllinois foreign language interpreters statute. 4

1

This statute provides for appointment of aninterpreter when a person accused of commit-ting a felony or misdemeanor "is to be tried inany court of this State.""2 Arguably the prere-quisite for implementation of the interpretersstatute is not established until after the prelimi-nary hearing. Therefore, the earliest stage inthe criminal process when Illinois law recog-nizes that there may be a need for an inter-preter for non-English-speaking defendants isat arraignment. On the other hand, Illinois lawdoes require that both at the bond and prelimi-nary hearings a qualified interpreter must beappointed by the court to interpret the pro-ceedings to a deaf person. 43 No challenge hasbeen made to the statute on equal protectiongrounds as applied to this stage of the criminalprocess, but it is hard to justify a distinctionbetween the deaf person and the linguisticallycrippled.

Furthermore, the thrust of the two statutes ismarkedly different, as is their potential for pro-tecting the defendant's constitutional rights.The statute providing for an interpreter for thedeaf makes appointment obligatory, makesclear that the proceedings are to be interpretedto the defendant, and requires a "qualified in-terpreter of the deaf sign language."a4 The stat-ute for language interpreters in criminal trialsprovides that the court shall determine upon itsown motion or that of counsel whether theaccused cannot understand the English lan-guage or make himself understood by court,counsel or jury.4 5 The focus is on the court'sability to take testimony, not the accused's abil-ity to understand the proceedings. The statute

Circuit Court Judge Wayne W. Olson, and throughthe action of Judge Eugene Wachowski, a full-timeinterpreter of Spanish was appointed to the CookCounty Criminal Court Building in Chicago at anannual salary of $11,800 and an interpreter ofFrench, Spanish and Italian was appointed to coverthe Cook County Branch courts. These two inter-preters were originally responsible for all otherbranches of the Cook County Crimihal Court. Inter-view with Judge Wayne Olson, Cook County Crimi-nal Court, Branch 44 (Dec. 2, 1975).

" ILL. REV. STAT. ch. 38, § 165-11 (1975).42 Id.

41 ILL. REV. STAT. ch. 51, § 48.01 (1975).44 Id.45 ILL. REV. STAT. ch. 38, § 165-11 (1970).

1977]

JOAN BAINBRIDGE SAFFORD

contains no requirements of competence be-yond those implied by the interpreter's oath, 46

which does not apply to testimony not offeredto the court. Furthermore, there is no explicitrequirement that the proceedings be inter-preted to the defendant.

Because the procedures for determiningneed and for determining an interpreter's com-petence are not spelled out in the foreign lan-guage interpreters statute, the trial court hasmuch greater latitude for the exercise of discre-tion than does the court in applying the inter-preters-for-the-deaf statute. As a result, a re-viewing court is less likely to find an abuse ofdiscretion.

This deference to the trial court's impliedconclusion that the defendant can "speak andunderstand English" is not unreasonable. Un-derstandably, the reviewing court is hesitant tofind error in a meagre record if there is someevidence to support the trial court. The writtenrecord is inadequate on the very questionraised. Often the reviewing court has only a fewisolated words by which to judge, particularly ifthe defendant has pleaded guilty or has nottestified in his own defense. The principle ofdeference was articulated by the appellate courtin People v. Tripp:47

When the witnesses labor under the handicap oflanguage difficulties, an appellate court, whichsees only the written record, should pay morethan ordinary deference to the conclusionsdrawn by the trial judge, who observed de-meanor and gestures of the witnesses and heardpossibly important variables of inflection andemphasis .48

That the court is able to make some sense ofwhat the person said is not determinative ofwhether the defendant "speaks English" suffi-ciently well to manage without an interpreter.The question is whether the person under-stands the question addressed to him and cangive an answer which conveys what he means tothe court."6 Whether the defendant's English is

46 ILL. REV. STAT. ch. 38, § 165-12 (1970).4, 19 Ill. App. 3d 200, 311 N.E.2d 168 (1974).

18 Id. at 203, 311 N.E.2d at 170." This distinction is illustrated by People v. Ortiz,

22 Ill. App.3d 788, 317 N.E. 2d 763 (1974), in whichthe defendant claimed the witnesses needed the ser-vices of an interpreter. The victim of the assault hadhad little opportunity to observe and had made anerror in identification. Four alibi witnesses. two of

sufficient will depend also on the complexity ofthe issues for trial.

Undoubtedly, determination of the suffi-ciency of the defendant's English should bemade by the trial court, but it should be doneexpressly. The First Circuit in United States v.Carrion0 endorsed the vesting of broad discre-tion in the trial court, stressing, however, theconsequent obligations on the trial court: (1) toinform the defendant of the right to an inter-preter, (2) to appoint an interpreter if the de-fendant is indigent, and (3) to be alert for suchlanguage difficulty during the trial as wouldrequire a new determination of need. The FirstCircuit appeared to require a formal hearingon the question of need or, at least, clear evi-dence on the record demonstrating the trialcourt's continuing attention to the defendant'spossible need.5'

The Illinois courts have not met this stan-dard. If the reviewing courts in Illinois are tocontinue to defer to the trial court, justice re-quires that even without a request from coun-sel, when the trial court has notice of languagedifficulty it should make some more formaldetermination of the defendant's ability tospeak English before concluding that the stat-ute is satisfied. Without such a formal determi-

whom spoke virtually no English, attempted to testifythat they had seen the defendant asleep in the livingroom of his father's apartment at the time of theassault. A review of the abstract of the record revealsa long series of unresponsive or confused answers.

Q: Isn't it a fact, Mr. Ortiz, that your son wasn'tliving at your house?A: Yes.Q: At that time?A: He living in the house for that time, right.Q: Mr. Ortiz, isn't it a fact he was living with May?A: No.Q: On that date?A: No, he was not married.Q: Do you remember the day he was arrested?A: Oh, that time he got two children ...Q: ... when Salvatore got arrested for thischarge, was he living at home?A: Yes, with me yes ... with May then.

Abstract of Record 32. The judge however claimedthat he understood the testimony and concluded "hebrought four people up here to testified [sic] falsely.All four of them contradicted each other." Record ofProceedings at 120.

o 488 F.2d 12 (1st Cir. 1973).' Id. at 14-15. The U.S. District Court for the

Northern District of Illinois has not routinized suchinquiries, although individual judges consider it wise.Interview with U.S. District Court Judge PrenticeMarshall, (N.D. Ill.) (Nov. 15, 1976).

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nation, the Illinois statute, despite its obligatorylanguage, provides an inadequate and uncer-tain shield for a defendant's constitutionalrights.

CONSTITUTIONAL ISSUES

The Illinois courts have been slow to recog-nize the constitutional questions inherent intrial of the non-English-speaking defendant.Even if he speaks some English, the constitu-tional requirement of a fair trial, that he under-stand the proceedings and be able to participatein his own defense, may not be met. 2 Thecourts seem to conclude that the trial court'sfinding that under the interpreters law the de-fendant speaks and understands enough Eng-lish not to require an interpreter means that hemust have understood the proceedings againsthim. The reviewing courts have thereforeshown deference to the trial courts even when aconstitutional claim is raised.'3 They have notrequired that there be a greater showing fromthe record when the question is whether thewaivers were understandingly given or whetherthe defendant understood the testimony of ad-verse witnesses.

In a series of cases the Supreme Court hasmade clear that there must be a clear trial re-cord to support a finding that constitutionalrights have been knowingly waived. As theCourt stated in Johnson v. Zerbst,54 "'[C]ourtsindulge every reasonable presumption againstwaiver' of fundamental constitutional rightsand... we 'do not presume acquiescence in theloss of fundamental rights.' 55

The requirement for a record was well dem-onstrated in Boykin v. Alabama, 6 in which theSupreme Court reversed the conviction on aplea of guilty to armed robbery and remandedfor trial despite the overwhelming evidenceagainst the accused. The record was entirelybarren on the question of whether the guilty

52 See U.S. v. Dusky, 362 U.S. 402 (1960) discussingmental incompetency: Due process requires that thedefendant have a "present ability to consult with hislawyer with a reasonable degree of rational under-standing-and ... a rational as well as factual under-standing of the proceedings against him." Id. at 402.

5 See People v. Rivera, 13 Ill. App. 3d 264, 300N.E.2d 869 (1973); People v. Melero, 99 Ill. App. 2d208, 240 N.E.2d 756 (1968); People v. Ayala, 8 I1.App. 2d 393, 233 N.E.2d 80 (1967).

54 304 U.S. 458 (1938).55 Id. at 464.56 395 U.S. 238 (1969).

plea was understandingly and voluntarilygiven. "So far as the record shows, the judgeasked no questions of petitioner concerning hisplea, and petitioner did not address thecourt.

'57

Even a record of express waiver may be in-sufficient and require further inquiry: "Thedetermination of whether there has been anintelligent waiver ... must depend, in eachcase, upon the particular facts and circum-stances surrounding that case, including thebackground, experience and conduct of the ac-cused.""6

The Illinois Supreme Court fully discussedthe duty to assure that waiver of constitutionalrights are understandingly and expressly madein People v. Fisher, 9 ajury waiver case. In Peoplev. Rambo,60 the Illinois appellate court recog-nized that in some cases, even a clear recordthat the defendant has been informed of hisright to a jury trial and has signed the jurywaiver form may require reversal. The court inthat case reversed the conviction of a sixteen-year-old boy, stating that the youth of the boyand seriousness of the crime imposed an extraduty of care on the court to assure that thewaiver was made with full knowledge of theconsequences.61 The court would not rely onthe defense attorney's assent to the waiver ofthe jury to satisfy the requirement of the Con-stitution and its implementing statute62 for anexpress, knowing waiver.

The Illinois courts have not provided thesame protection of the right by jury to thelinguistically infirm. Just as youth places specialobligations on the judge to assure that the pleaof guilty or jury waiver are understandinglymade, so, too, should language disability. Yetin People v. Melero63 the reviewing court upheldthe bench trial conviction when the attorneyalone assented to the jury waiver and the trialbegan:

The Court: Could he go to trial without aninterpreter?

Mr. Gilbert: He will try to do it. He speaksSpanish.

57 Id. at 239.58 Johnson v. Zerbst, 304 U.S. at 464.59 340 I11. 250, 265, 172 N.E. 722, 728 (1930).60 123 Il1. App. 2d 299, 260 N.E.2d 119 (1970).61 Id. at 305, 260 N.E.2d at 122.62 ILL. REV. STAT. ch. 38, § 103-6 (1975).61 99 Ill. App. 2d 208, 240 N.E.2d 756 (1968).

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JOAN BAINBRIDGE SAFFORD

The Court: Do you want me to hear the case ordo you want a jury trial?

Mr. Gilbert: Waive the jury, Your Honor.The Court: State ready?Mr. Hackett: The State is ready.64

Turning the Rambo decision on its head, theIllinois appellate court considered this recordand concluded: "If the jury waiver here was notunderstandingly made, this record does notshow it." 6 The defendant was presumed tohave assented to his attorney's waiver of a jurytrial by not objecting. Yet the error raised onappeal was that the defendant was incompetentto know or understand what right was beingwaived. 66 Without a full exploration by thecourt of the defendant's ability to comprehendthe proceedings, not merely to answer re-hearsed questions in English, the conclusionthat the waiver was understandingly made wasimproper.

Other appellate courts have refused to up-hold the trial court in similar circumstances,even when the record reveals that the defend-ant speaks and understands some English.The requirements of due process have beenused to narrow the scope of judicial discretionas to appointment of an interpreter. In In reMuraviov,67 the California Court of Appeals,acting on a writ of habeas corpus, reversed and

6 4 1d. at 211, 240 N.E.2d at 757.6 Id. An example of an Illinois trial judge more

conscientiously fulfilling his responsibility is illus-trated by People v. Castillon, 132 Ill. App. 2d 581, 270N.E.2d 268 (1970), in which Judge Collins rejected thedefense attorney's estimate of his client's ability tounderstand English and the jury waiver:

THE COURT: I am sure you have done every-thing in your power to properly defend this man,however, I am not satisfied that we can proceedto trial without an interpreter. I want someone totell this man in his own language what is transpir-ing and we are beginning right at the beginningwith a waiver of a very basic constitutional right,the waiver of jury trial, and I am not satisfiedthat this record shows he understands that.Id. at 583, 270 N.E.2d at 270.66 The theory is that the defendant knows and

understands what his agent, that is, the attorney,understands. But surely this theory of agency mustbreak down if the defendant and attorney cannotcommunicate. Cf. Dusky v. United States, 362 U.S.402 (1962), where in discussing mental incompetency,the Court said due process requires an ability toconsult with one's lawyer. See also People v. Hernan-dez, 8 N.Y.2d 345, 207 N.Y.S.2d 668, 170 N.E.2d 673,cert. denied, 366 U.S. 976 (1960).

67 192 Cal. App. 2d 604, 13 Cal. Rptr. 466 (1961).

remanded a criminal conviction for wilful fail-ure to support a minor child. The court foundthat the defendant had not knowingly waivedhis right to counsel. The trial court had askedMuraviov four perfunctory questions, all ofwhich could be answered by "yes" or "no". Theresponses had provided the basis for the Appel-late Department of the Superior Court to find asufficient ability in English to sustain the trialjudge's action in proceeding without an inter-preter. After conducting its own hearing on theaccused's ability to speak English, the appealscourt concluded:

lit should be obvious that if petitioner was un-able to understand or speak English, his mono-syllabic "yes" and "no" answers had no mean-ing.

68

In a similar case, the Oklahoma SupremeCourt in Landeros v. State69 reviewed denial of amotion to withdraw a guilty plea. The courtexamined the record of an illiterate Mexican-American who had pleaded guilty to murderafter having his constitutional rights, includinghis right to a jury trial, explained to him inEnglish. Although the defendant spoke andunderstood some English, his use of Englishwas so limited that the court concluded hecould not have understandingly waived his con-stitutional rights. Citing an earlier Oklahomacase,"0 the court recommended appointment ofan interpreter when language ability is limitedas a "wholesome precautionary measure; and toassure that all of the defendant's waivers wereknowingly and intelligently entered."'"

Both cases reached the reviewing court withan addition to the bare record of the trial. InMuraviov the habeas proceeding made clear tothe court that the defendant could not speakEnglish. In Landeros the record of the hearingon the motion to withdraw the plea of guiltyprovided similar evidence. These Californiaand Oklahoma cases suggest the constitutionalinsufficiency of the Illinois courts' position. Illi-nois courts should require a substantial recorddemonstrating the defendant's ability to speakand understand English before finding that awaiver is knowing.

68 Id. at 606, 13 Cal. Rptr. at 467.69 480 P.2d 273 (Okla. Crim. 1971).76 Parra v. Paige, 430 P.2d 834 (Okla. Crim. 1967).71 480 P.2d at 275 (Okla. Crim. 1971).

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THE NON-ENGLISH SPEAKING DEFENDANT

Right of Confrontation and Cross-examination ofWitnesses

The courts have long recognized that thesixth amendment right to confront witnesses"really means the right of the accused to hearthe witnesses testify against him and to cross-examine them."72 In a 1970 case, United States exrel. Negron v. New York, 73 the Court of Appealsfor the Second Circuit held that the right to aninterpreter for the indigent non-English-speak-ing defendant was a necessary adjunct to pro-tection of the defendant's constitutional right toconfront the witnesses against him. The SecondCircuit affirmed a district court decision sus-taining a petition for writ of habeas corpus foran illiterate Puerto Rican migrant worker whohad been convicted of murder. Although aninterpreter was provided for the convenienceof the court when Negron and two other wit-nesses testified and during a brief conferencewith Negron's lawyer, twelve English-speakingwitnesses had testified without any translationfor Negron nor communication between Ne-gron and his attorney. The court found thatNegron was linguistically incompetent to standtrial without an interpreter to aid him. "ToNegron, most of the trial must have been a'babble of voices."74 Because Negron was indi-gent, the trial court was obliged to provide theinterpreter. 7

' The Second Circuit concludedthat in no sense did Negron's silence constitutea waiver of his fundamental right to confrontthe witnesses against him through an inter-preter, for his silence did not satisfy the consti-tutional standard for waiver: "an intentionalrelinquishment or abandonment of a knownright.176 Nor would Negron's attorney be found

72 United States v. Barricota, 45 F. Supp. 38 *(S.D.N.Y. 1942).

73 434 F.2d 386 (1970).74 Id. at 388.75 The Second Circuit had earlier suggested that

due process and the right to confront witnesses mightrequire appointment of an interpreter. In UnitedStates v. Desist, 384 F.2d 889 (2d Cir. 1967), affd onother grounds, 394 U.S. 244 (1968), a Frenchman,charged with dealing in heroin, clearly had the re-sources to pay for an interpreter but disassociatedhimself from the interpreter when he learned hemust pay for the service. Negron satisfied the impliedrequirement of indigency suggested in Desist. 434F.2d at 389.

76 434 F.2d at 390, citingJohnson v. Zerbst, 304 U.S.458 (1938).

to have waived Negron's right when the rightwas previously so ill-defined. 77

The Second Circuit recognized the prece-dential value of its decision for the defendantwho speaks no English. But the decision didlittle for the defendant who, unlike Negron,speaks some English. The court suggested theparallel of the linguistically incompetent to thementally incompetent. 78 But it did not explicitlyhold, as the Supreme Court had held with re-spect to mental incompetence in Pate v. Robin-son,79 that when linguistic incompetence is apossibility, the court should hold a hearing suasponte to determine competence. 0 Negron's lin-guistic incompetence was "obvious, not just apossibility."'" By neglecting to suggest proce-dures for determining whether the defendanthad a "severe language difficulty,""2 the SecondCircuit left intact the practice by which a re-viewing court would examine the record forhints of the defendant's linguistic competenceas a basis for upholding the trial judge's discre-tionary decision. It was because Negron cameto the court on a writ of habeas corpus that thecourt looked beyond the record. Furthermore,the right to court appointment of an inter-preter remained limited to indigent defend-ants. As the right to an interpreter is nowclearly established, the court may presume awaiver of the right if the private attorney doesnot claim it.

Some of the deficiencies of Negron were over-come in United States v. Carrion 3 where the FirstCircuit recognized that protection of a defend-ant's constitutional rights to a fair trial and toconfront witnesses may require an interpreter,even if the defendant has "some ability to un-derstand and communicate" in English:

77 434 F.2d at 390. The court seemed to recognizethe danger that an attorney might not assert the rightand yet try to carry it on appeal. The obvious cure isfor the court on its own motion to hold a hearing onthe need.7

1 Id. citing Pate v. Robinson, 383 U.S. 375 (1966).79 383 U.S. 375 (1966).80 Of course, the Second Circuit decision was not

legally binding on any courts except those of theSecond Circuit. In People v. Rivera, 13 Ill. App. 3d264, 267, 300 N.E.2d 869, 871 (1973) the court ac-knowledged that there might be such an obligationbut that it was satisfied by asking the illiterate co-defendant to act as interpreter. See text accompany-ing notes 103 to 106 infra.

81 434 F.2d at 390.82 Id. at 391.83 488 F.2d 12 (1st Cir. 1973).

1977]

JOAN BAINBRIDGE SAFFORD

The right to an interpreter rests most funda-mentally . . . on the notion that no defendantshould face the Kafkaesque spectre of an incom-prehensible ritual which may terminate in pun-ishment.

Yet how high must the language barrier risebefore a defendant has a right to an interpreter?... Because the determination is likely to hingeupon various factors . . . considerations of judi-cial economy would dictate that the trial court,coming into direct contact with the defendant,be granted wide discretion in determiningwhether an interpreter is necessary .... Butprecisely because the trial court is entrusted withdiscretion, it should make unmistakably clear tothe defendant who may have a language diffi-culty that he has the right to a court-appointedinterpreter if the court determines one isneeded, and, whenever put on notice that theremay be some significant language difficulty, thecourt should make such a determination ofneed.84

The First Circuit suggested that the trial courtmust weigh the defendant's ability in English

together with the complexity of the issues fortrial. "5 In the exercise of its discretion, the trialcourt has an obligation to hold a formal hearing

or to follow other procedures8 6 to assure thatthe interpreter will be appointed if needed atany point during the trial.

The First Circuit did not suggest that thecourt's duty to determine need was lessened ifthe attorney did not ask for an interpreter orthe defendant was not indigent. The initiativeremained with the court. Even after counsel inCarrion stated that no interpreter was neces-sary, the trial court had continued to be awareof its responsibility to ensure the defendantunderstood the testimony.

As early as 1957, the Illinois Supreme Courtrecognized that if the defendant cannot under-

stand the testimony of the witnesses against himbecause of a language barrier, the defendanthas been deprived of his constitutional right toconfront adverse witnesses. In People v. Shok, "

the Illinois Supreme Court found an abuse of84 Id. at 14-15.85 Id. This court is unique in recognizing the strain

of following testimony in another language even ifone has some ability to speak it.86Id. at 15.

87 12 Ill. 2d 93, 145 N.E.2d 86 (1957). The fact thatthe court might glean what the witness meant fromthe witness's tone of voice and emotions could notcompensate for an extensive record revealing thewitness's difficulty in expressing herself.

discretion in failure to appoint an interpreter

for a prosecuting witness who spoke almost noEnglish. The cross-examination had been se-verely limited by the witness's disability. Therecord was replete with evidence of the need

for a competent interpreter.8 8

In People v. Starling,89 it was again the prose-

cuting witness, and not the defendant whospoke no English. The appointed interpreter's

translation was so inadequate that neither thecourt, counsel nor the defendant could followthe testimony. The interpreter was repeatedlychastised for carrying on an independent collo-quy with the defendant. And the abortive cross-examination by defense counsel had to be re-shaped to make any sense at all. In Starling, theIllinois appellate court recognized for the first

time that:

[T]he due process rights of persons chargedwith crimes cannot be short-cut by avoiding theritual of translating each question and answer asrequired in section 2 of the Act relating to inter-preters .9

The reviewing court again had an adequaterecord from which it could conclude that therehad been an abuse of discretion."

88 One could also argue that when a prosecuting

witness is so hampered in his or her use of Englishthat there is no way to make the testimony precise,definite and sure, and the testimony is critical to theconviction, then, as a matter of law, the defendanthas not been proved guilty beyond a reasonabledoubt.

89 21 Ill. App. 3d 217, 315 N.E.2d 163 (1974).9 Id. at 222, 315 N.E.2d at 168.91 In People v. Ortiz, 22 I1. App. 3d 788, 317

N.E.2d 763 (1974), the defendant argued that his alibiwitnesses needed an interpreter. Without one, theiranswers were "unresponsive and/or contradictoryand therefore unconvincing to the court." He wastherefore deprived of his right to present his defense.Brief for Appellant at 50-51. Here, despite the clearrecord of confusion, the appellate court barely ac-knowledged the argument since the trial court had"understood" the testimony. The issue in testing awitness's testimony should not be whether the wit-ness's answers are decipherable, but whether the wit-ness understood the question and gave responsiveanswers. The trial court's lack of recognition of thepossibility of linguistic isolation during a long periodof residency in the United States is revealed by thejudge's impatience with the defendant's contention.At the trial the judge commented: "he brought fourpeople up here to testified [sic] falsely. All four ofthem contradicted each other." Record at 120. At thepost conviction hearing the judge said:

They are long term residents of this area. And it

[Vol. 68

THE NON-ENGLISH SPEAKING DEFENDANT

But the Illinois courts have not yet held thatthere was an abuse of discretion in any casewhere the defendant claimed that he had notbeen afforded his right to confront witnessesbecause he did not have an interpreter for hisown use or because the interpretation grantedwas deficient. 9 2 The record does not provideany support for his claim that he has not"heard" the testimony, and the Illinois courtsappear loath to find an abuse of discretion ab-sent a record of miscomprehension.

This is not to suggest the reviewing courtneed conclude from every incongruous ques-tion and answer or from a record containingonly monosyllabic responses that there was er-ror in not providing an interpreter. But wherethe record is inadequate to make any decisionon the issue, and the question does not come tothe reviewing court in a form where it candetermine the defendant's competencythrough its own hearing, the case should beremanded for an explicit finding. 93

Such a procedure would also prevent manip-ulation of the record by the defendant whoclaims he does not speak adequate English andthen does not testify in order to preserve hislanguage disability as grounds for later appealor a writ of habeas corpus. 94 In State v. Ague-lara,95 the Missouri trial court in an ex partehearing weighed the testimony that the defend-ant spoke Spanish at home and his own claimsthat he "couldn't get" the questions addressedto him and only knew a few English wordssufficient for his job, together with testimonyby a friend that she spoke no Spanish but hadno difficulty communicating with the defend-ant. The court concluded that no interpreterwas necessary. In upholding the trial court, the

is like many times these people, once they didn'tget what they want, then they didn't understandwhat happened.

Record at 191.92 People v. Rivera, 13 Ill. App. 3d 264, 300 N.E.2d

869 (1973); People v. Martinez, 7 I1. App. 3d 1075,289 N.E.2d 76 (1972).

" Since the obligation rests on the court as well asthe defendant's counsel, the failure of the defend-ant's counsel to request an interpreter should not betaken as a waiver if there is an indication of need. Butsee People v. Melero, 99 Ill. App. 2d 208, 240 N.E.2d756 (1968).

" This was the obvious concern of the court inPeople v. Rivera, 13 Ill. App. 3d 264, 300 N.E.2d 869(1973) and People v. Ayala, 89 Ill. App. 2d 393, 233N.E. 2d 80 (1967).

"5 33 S.W.2d 901 (Mo. 1930).

Missouri Supreme Court stated that in eachinstance where inability to understand the pro-ceedings was claimed or apparent there must bean express determination of whether an inter-preter was necessary before the court will sup-port the decision not to provide an interpreteras a sound exercise of discretion.9'

Quality of Interpretation

The court in People v. Starling9e 7 recognizedthat the quality of interpretation may deter-mine whether the defendant has understoodthe testimony against him sufficiently to satisfythe constitutional requirement. Similarly, thequality of interpretation may affect whether thedefendant has understood and knowinglywaived his rights.

The interpreter-for-the-deaf statute providesmore assurance that the defendant's constitu-tional rights will be protected than does thelanguage-interpreter statute. The previousdeaf-mute statute explicitly required a "quali-fied" interpreter;98 the amended statute re-quires that the interpreter be a "qualified inter-preter of the deaf sign language."9 The Illinoisappellate court in Hudson v. Augustine's, Inc."'found that an interpreter who was not formallytrained to interpret for the deaf, but insteadonly knew what the deaf mute had taught him,did not satisfy the statutory requirement ofcompetency. The interpreter had only beenable to testify to what he understood the deafmute to have said, a translation which the courtdid not find sufficiently "unequivocal and posi-tive and definite in character."' 0'

The language interpreters statute says noth-ing about qualifications. Policemen, state em-ployees, and co-defendants are not disqualifiedsolely on the ground that they may be inter-ested parties.1"' The court, in the exercise of its

96 Id. at 904.97 21 Ill. App. 3d 217, 315 N.E.2d 163 (1974).98 ILL. REV. STAT. ch. 51, § 48.01 (1963) (current

version at ILL. REV. STAT. ch. 51, § 48.01 (1975)).'9 ILL. REV. STAT. ch. 51, § 48.01 (1975)."o 72 Ill. App. 2d 225, 218 N.E.2d 510 (1966).1o Id. at 237, 218 N.E.2d at 516.102 Interview with Christina Ruiz, Cook County

criminal court interpreter (Dec. 5, 1975). See People v.Murphy, 276 Ill. 304, 114 N.E. 609 (1916); People v.Torres, 18 Ill. App. 3d 921, 310 N.E.2d 780 (1974)(police officer); People v. Rivera, 13 Ill. App. 3d 264,300 N.E.2d 869 (1973) (co-defendant); People v. Del-gado, 10 Ill. App. 3d 33, 294 N.E.2d 84 (1973) (un-sworn bailiff).

JOAN BAINBRIDGE SAFFORD

discretion, has used and continues to use rela-tives and friends or to press court clerical per-sonnel into service.'0 3 Only one case reviewed

revealed an inquiry by the court into the cre-dentials of the interpreter; the burden is on thedefendant to show lack of qualification.'" Inonly a few cases have the Illinois courts foundthe interpreter incompetent; those involved

translation of witnesses' testimony, where theconfusion of court and counsel because of theinterpreter's incompetence was clear on the re-

cord .115

Any subsequent challenge to the competenceof the interpreter when the translation has beenmade for the benefit of the defendant and notthe court suffers from the same disability asthat presented when no interpreter is provided.There is no record of theforeign language interpreta-tion. Yet behind the questions of competency ofthe interpreter and the quality of the interpre-tation lies the question of what the defendant

heard and agreed to.In People v. Rivera, 0 6 the Illinois appellate

court found that appointment of a co-defend-ant as interpreter at the suggestion of the publicdefender satisfied the requirements of the stat-ute. Any objection to the appointment hadbeen waived by counsel's tender of the inter-

103 People v. Rardin, 255 Ill. 9,99 N.E. 59 (1912). In

July, 1974, the author, attending a preliminary hear-ing for a case handled by the Northwestern Univer-sity Legal Assistance Clinic, was pressed into serviceas interpreter for two other cases at the Cook CountyCriminal Court Building. The same ad hoc proce-dure was observed during visits to Cook CountyCourt, Municipal Division, Boy's, Gun, and AutoTheft branches, Nov., 1975.

The N.Y. Times, Nov. 7, 1976, § 1, at 48, col. 3,reports that at a pretrial hearing to determinewhether a prosecutor-obtained interpreter hadserved as a prosecution informant, a member of theaudience was drafted to interpret the proceedings forthe Croatian defendant.

Judge Wayne W. Olson complains that without aprofessional interpreter it is almost impossible to ob-tain a translation which would make a record of thedefendant's comprehension of the proceedings, sincethe interpreter is inclined to explain rather thantranslate, when the defendant doesn't understand.Interview with Judge Wayne W. Olson, Cook CountyCourt, Branch 44 (Dec. 1, 1975).

'0' People v. Martinez, 7 Il1. App. 3d 1075, 289N.E.2d 76 (1972).

'o' E.g., People v. Starling, 21111. App. 3d 217, 315N.E.2d 163 (1974). In People v. Allen, 22 11. App. 3d800, 317 N.E.2d 633 (1974), the interpreter, a friendof the complaining witness, was found dis'qualified asan interested party.

' 13 Il. App. 3d 264, 300 N.E.2d 869 (1973).

preter. The court looked at the careful instruc-tions on jury waiver which the trial court hadgiven to the defendants followed by the ques-tion, "He understand that?" and the defend-ant's answer, "Yes." Despite the absence of anyrecord that the co-defendant had translated thecourt's words, the reviewing court refused todraw the negative inference that an inadequatetranslation had taken place.'0 7 Nor did thecourt find evidence of incompetence in the co-defendant translator's confession to the courtthat he did not know how to read, but would"tell" the defendant what the jury waiver formsaid. 08 This is similar to the Illinois court'spractice in accepting interpretations which arenot literal translations but merely substantiallythe same as the testimony.'09 Finally, the courtdid not question how the co-defendant couldprovide adequate interpretation once the pre-liminary proceedings were over and the trial ofboth defendants was under way.

In People v. Martinez,'" there was no questionabout the competency of the defense attorneyto speak and understand Spanish, but the ade-quacy of the interpretation which he gave to thedefendant was at issue."' The defendant, a

107 [T]he record . . . does not show that any in-

terpretation in fact occurred. Defendant wishesus to indulge in the negative inference thattherefore no interpretation did in fact occur; ...

Such a negative inference is too slender a reedon which to predicate reversible error.

Id. at 268, 300 N.E.2d at 872.10s Abstract of Record at 5'01 People v. Murphy, 276 Ill. 304, 114 N.E. 609

(1916). In Murphy the witness referred to the assail-ants in Greek as "negalos" [the big man] and "mikros"[the little man]; the interpreter substituted the namesof the defendants for those references. Id. at 320-21,114 N.E. at 615.

The insufficiency of summary translations wascommented on by the court in United States ex rel.Negron v. New York, 434 F. 2d 386 (1970):

However astute [the] summaries may have been,they could not do service as a means by whichNegron could understand the precise nature ofthe testimony against him during that period ofthe trial's progress when the state chose to bringit forth. Negron's incapacity to respond to spe-cific testimony would inevitably hamper the ca-pacity of his counsel to conduct effective cross-examination .... [A]s a matter of simple hu-maneness, Negron deserved more than to sit intotal incomprehension as the trial proceeded.Id. at 389-90."o 7 11. App. 3d 1075, 289 N.E.2d 76 (1972).

' Although the fact that an attorney speaks thelanguage of the accused has led courts to hold that no

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THE NON-ENGLISH SPEAKING DEFENDANT

Puerto Rican who neither spoke nor under-stood English, pleaded guilty to murder andtwo charges of attempted murder. On appealhe argued that his attorney had tricked him atthe trial, taking the time allowed by the judgefor translation of thejudge's admonitions to tellhim that if he did not plead guilty he would get100-199 years. The defendant claimed that hebelieved he was pleading guilty to manslaugh-ter. The court acknowledged that the recordcarried no indication of the defendant's know-ing waiver of his right to a jury trial, but pre-sumed that the attorney, whose ability to trans-late was established by the trial court, hadproperly translated the admonitions. Again,because of the absence of any record of theSpanish spoken to the defendant, the recordnecessary to determine the merits of the appealwas unavailable to the reviewing court. No Eng-lish-speaking defendant suffers this disabilitywhen he asks the court to review the record forevidence of an involuntary plea.

The first solution would be to provide for-eign language transcriptions of the inter-preter's translation of the proceedings. Thetranscription could be checked against the Eng-lish-language proceedings to determinewhether sufficient translation was provided sothat the defendant could understand the pro-ceedings. One attorney has argued without suc-cess that foreign language transcriptions arerequired by chapter 37, section 163(F)(1) of theIllinois Revised Statutes, which calls for fullstenographic notes of the proceedings.112 TheIllinois courts have, however, rejected the con-tention that the proceedings must be immedi-ately and fully translated to the defendant." 3

An inexpensive and uncomplicated method ofpreserving the record would be to tape the in-terpretation for later transcription if necessary,should the competency of the translation be

interpreter is necessary, it should be clear that theattorney cannot translate the substance of testimonyand properly carry out his functions. But see People v.Martinez, id., 289 N.E.2d 76; cf. People v. Pelgri, 39Ill. 2d 568, 237 N.E.2d 453 (1968).

"2 Brief for Appellant at 14, People v. Martinez, 7I11. App. 3d 1075, 209 N.E.2d 76 (1972). The courtreporter at any arraignment must take full steno-graphic notes of the proceedings, including the pleaby the accused, the receipt and entry by the court,and the admonishment by the court. ILL. REv. STAT.ch. 37, § 661 (1975).

1' People v. Torres, 18 I11. App. 3d 921, 926, 310N.E.2d 780, 784 (1974), citing Tapia Corona v. UnitedStates, 369 F.2d 388 (9th Cir. 1966).

challenged. But there is no precedent in Illinoisfor even this modest method of assuring thatthe substance of the proceedings is communi-cated.

It is no real solution to be able to determineafter the trial that the translation was insuffi-cient. Despite the silence of the statute, the trialcourt is obliged to make an express determina-tion of need if it has notice of language diffi-culty and to appoint competent interpreters.Neither obligation is relieved by the defensecounsel's waiver of an interpreter, tender of anincompetent one, or failure to object to thequality of interpretation. The court should in-dependently determine the competency of theinterpreter, unless a professional one is pro-vided by the state. California is almost uniquein providing that judges may use examinationsor "other suitable means" to assure the compe-tency of interpreters. 1 4 The Illinois SupremeCourt or Illinois legislature should implementsimilar measures.

Employment of a Professional Interpreter

The right to an interpreter to aid the non-English-speaking defendant in protection of hisconstitutional rights has been more effectivelyrecognized in the federal courts and some otherstates than in Illinois. The federal courts havemoved toward requiring regular procedures todetermine need or substantive evidence thatthe trial judge has in fact made a determinationof need whenever language difficulty has de-veloped during a trial. Despite the fact that nostandards for interpreters have been promul-gated by the United States Supreme Court andno Supreme Court rule makes appointmentobligatory, the various district courts of theSecond, Fifth, Seventh and Ninth Circuits andof Puerto Rico now employ professional inter-preters. Verbatim interpretation is thereforeavailable for the convenience of the court intaking testimony and to translate the proceed-ings for the indigent defendant.

In the Fifth and Ninth Circuits and in Puerto

114 See CAL. CIv. PROC. CODE § 264 (West Supp.

1971). Kansas specifically disqualifies relatives of thefirst or second degree and provides that before ap-pointment, the appointing authority shall make:

a preliminary determination that the interpreteris able to readily communicate with the personwhose primary language is one other than Eng-lish ... and is able to accurately repeat andtranslate the statement of said person.

KAN. STAT. ANN. § 75-4353(b) (Supp. 1975).

1977]

JOAN BAINBRIDGE SAFFORD

Rico, the interpreters are always available with-out regard to indigency.i 5 In the United StatesDistrict Court for the Northern District of Illi-nois the right to an interpreter at governmentexpense is limited to the indigent defendant,although some district courtjudges will arrangefor the interpreter and determine the source ofcompensation later.i 's Non-English speakingdefendants who retain their own attorneys areoften inadequately protected ." 7 The federal in-terpreter may be called to appear at the bondhearing after the narcotics agent has informedthe United States Attorney that the accuseddoes not speak English, or the Federal De-fender's office may call before arraignment.But if the defendant subsequently secures aprivate attorney, the federal interpreter may no

... MEXICAN AMERICANS AND THE ADMINISTRA-

TION OF JUSTICE, supra note 28, at 72; 1966 JuD.CONF. REP. 59. All proceedings in U.S. District Courtin Puerto Rico are required to be in English, 48U.S.C. § 864 (1974). Since only 37.7% of the adultpopulation speaks English, STATUS OF PUERTO Rico152,supra note 17, the need for a full-time interpreteris manifest.

116 Interview with U.S. District Court Judge Pren-tice Marshall (N.D. Ill.) (Nov. 15, 1976).

1,7 Interview with U.S. District Court (N.D. Ill.)interpreter Alicia Haas, Dec. 3, 1975. Because Mrs.Haas is not salaried, the district court's position hadbeen that she could not be made available to thedefendant at government's expense without a show-ing of indigency; however, the district court is consid-ering a proposal to provide regular court appointedinterpreters. Interview with U.S. District CourtJudge Prentice Marshall, Nov. 15, 1976. Mrs. Haasexpressed dismay that the court had limited the rightto court appointed interpreters to indigents based onthe precedent of a case in which the defendant was arich French narcotics dealer. U.S. v. Desist, 384 F.2d889 (2d Cir. 1967), affd on other grounds, 394 U.S. 244(1968). The usual case, she said, is a basically poordefendant who scrapes together money to pay theprivate attorney in advance. The private attorney isthen often not interested in paying the $40-a-day rate.More recently, the district court judges have increas-ingly used Mrs. Haas' services without regard to de-fendant indigency. Rule 28 Federal Rules of CriminalProcedure makes provision for appointment.

Mrs. Haas reports that when an interpreter is pres-ent at the instigation of prosecutors rather than as anemployee of the court, defendants and their attor-neys may distrust the interpreter. Interview with Mrs.Haas, Nov. 10, 1976. The problem in using an inter-preter obtained by prosecutors is illustrated in therecent case of Croatian nationalists charged with hi-jacking a jet. The prosecutions may be jeopardizedbecause the interpreter is charged with also serving asa prosecution informant. N.Y. Times, Nov. 7, 1975,at 48, col. 3.

longer be employed for the defendant's use.The defendant may then enlist a member of hisfamily or a friend who is not trained to translateverbatim.

The Illinois decisions do not match those ofthe federal courts in protecting the non-Eng-lish-speaking defendant, but the practice whichis developing at the Cook County CriminalCourt Building may provide even greater ad-vantages than does the federal system. UntilMay, 1975, the branch courts located at theCook County Criminal Court Building de-pended almost entirely on drafting ad hoc in-terpreters, relatives, clerical and court person-nel, when the need arose. A list of interpreterswas maintained for more drawn-out proce-dures, but quality of translation of the proceed-ings varied.""

The degree to which the need went unrecog-nized is indicated by the startling increase in thenumber of cases in which an interpreter hasbeen employed since the judges became awarethat the court had hired its first full-time salar-ied interpreter, skilled in verbatim translation.During the first month, the interpreter wasutilized in twenty-four courtroom proceedings.The number of calls for courtroom work in-creased steadily, so that in the fifth month shemade ninety-four courtroom appearances.'

While the Illinois language interpreters stat-ute does not provide for an interpreter at theearly stages of the criminal process, the practiceat the Criminal Court Building exceeds the re-quirements of the law. The interpreter arrivesat 8:30 A.M. and immediately consults withinterviewers to determine which prisonersbeing held for bond hearings do not speakEnglish. Each morning there are five to eightpeople in this category. "Before we even get

1"I Interview with Judge Wayne W. Olson, Dec. 2,1975.

"9 Day book of Cook County Criminal Court inter-preter, Christina Ruiz, May-Nov. 1975. Increasingly,the judges at the Cook County Criminal Court Build-ing take precautionary measures when there is somedoubt of the ability of the defendant to comprehend.One judge who formerly had been quick to concludeno interpreter was necessary now accounts for a sub-stantial portion of the interpreter's caseload. Inter-view with Christina Ruiz, Dec. 2, 1975. Anotherjudgestated that there was no doubt that the court, know-ing that the interpreter is available, can now exploremore carefully with the defendant his understandingof the pleading, waivers, and testimony. Interviewwith Judge Wayne W. Olson, Dec. 2, 1975.

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THE NON-ENGLISH SPEAKING DEFENDANT

started in the morning [the interpreter] hasspotted the cases where she will be needed ,'"120

one judge told an interviewer. The interpreter,appearing at the bond hearings, is able to haveher schedule considered when later proceed-ings are being scheduled. When there are de-lays or continuances, the defendant does notfind himself without an interpreter. If the needis not immediately apparent but becomes clearduring the trial, the interpreter can be presentafter only a brief recess.' 2 '

Once the need for an interpreter is estab-lished, interpreter's services are provided atstate expense. The availability of a professionalinterpreter means that the judges at the CookCounty Criminal Court Building can recom-mend her services even when the defendantretains a private attorney. Although privatecounsel do not yet take proper advantage of theavailability of a free interpreter, some judgesregularly offer conference time for the privateattorney to consult with his client through theinterpreter.

22

In the past there have been almost no stan-dards for interpretation of courtroom proceed-ings to the non-English-speaking defendantunless and until he testifies. Even then the stan-dards have varied widely. But with the intro-duction of a professional interpreter translatingverbatim, the quality of the defendant's under-standing becomes a part of the record. Whenthere is confusion, when the defendant has notunderstood the court's admonitions, there is nolonger a colloquy of explanation in the foreignlanguage between the defendant and the inter-preter. The defendant's questions are trans-lated to the court and the court's further ex-

120 Interview with Judge Wayne W. Olson, Dec. 2,1975.

121 Personal observations of the author during ahalf day spent with Criminal Court interpreter,Christina Ruiz, Cook County Criminal Court, Dec. 2,1975. In the first year of the program, the singleinterpreter was also on call to all branch courts, butshe could not meet these demands and also meet themass need at the central criminal court. A secondinterpreter now serves the southern branch courts.Interview with Judge Wayne W. Olson, Nov. 12,1976.

122 Public defenders also have a greater opportu-nity to prepare their cases involving non-English-speaking defendants. Common practice in interviewshad been to use other Spanish-speaking prisoners.Conversation with Public Defender Thomas Moore,Cook County Criminal Court, Dec. 2, 1975.

planation provided to the defendant throughthe interpreter.'"

Furthermore, when English-speaking wit-nesses, counsel or the court speak, the courtcan be confident that the proceedings are beingtranslated. The interpreter has the powers ofintense concentration necessary for interpreta-tion and no other duties to distract from thatobligation. A professional interpreter also canmaster the subtleties of dialect 12 4 and the spe-cialized language of such fields as medical path-ology. Moreover, the interpretation is not ob-trusive.

For the defendant whose bond hearing isheld elsewhere in Cook County or whose al-leged criminal act carries him into some othercourtroom in the state, the need for interpreta-tion of the proceedings to the defendant con-tinues to be ignored or inadequately met exceptwhen provided by conscientious counsel. Evenat the Cook County Criminal Court Building,needs in languages other than Spanish are metin a more makeshift manner. And some judgesstill prefer to avoid using an interpreter's ser-vices unless the need is glaring. 2 Thus, protec-tion of the defendant's rights is still somewhatarbitrary.

CONCLUSION

While recognizing that failure to provide aninterpreter might violate a defendant's consti-tutional rights to a jury trial or confrontation ofwitnesses, the Illinois appellate court contin-ues to give such deference to the trial court'sdiscretion in cases where the defendant speakslittle English that appeal is discouraging. Thecourt's failure to insist on an adequate record ofthe defendant's comprehension of the proceed-ings to support the trial court's decision not to

' See People v. Starling, 21 111. App. 3d 217, 221N.E.2d 163 (1974).Judge Olson reported that this wasone of the most recurring and frustrating problemsin that he could not know if the explanation con-tained the substance of the court's words. Interviewwith Judge Wayne W. Olson, Dec. 2, 1975.

'24 In People v. Starling, 21 Ill. App. 3d 217, 221N.E.2d 163 the question whether the Spanish-speak-ing witness had been in a bar was misunderstoodwhen the bailiff-interpreter apparently translated theword as "bara," a Caribbean usage. The witness de-nied being in the "bara." In Mexico the word is"cantina." Brief for Appellant at 15.

' Interview with Criminal Court interpreter Chri-tina Ruiz, Dec. 2, 1975. One judge has not used theinterpreter at all.

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JOAN BAINBRIDGE SAFFORD

provide an interpreter means that appointmentof any interpreter is often a matter of chance.Furthermore, even in those cases where an in-terpreter is used, since no provision is made forappointment of professional interpreters or fortranscribing or recording the interpretationgiven, the trial record often reveals almostnothing of what an interpreter has in fact com-municated to the defendant or whether thedefendant has understood.

A hearing on a motion to withdraw a guiltyplea, if appropriate and timely, or a petition ona writ of habeas corpus may be the only waysthat such a defendant can create an independ-

ent record of his disability. It may even be moredifficult to establish the incompetence of aninterpreter who has translated nothing for therecord.' 26 Until the Supreme Court of Illinoisor the Illinois legislature establishes clear pro-cedures and standards to determine need andquality of interpretation, the non-English-speaking defendant's rights to trial by jury, toeffective counsel, to confront adverse witnessesand to a fundamentally fair trial are not as-sured.

126 E.g., People v. Rivera, 13 Il1. App. 3d 264, 300N.E. 2d 869 (1972).

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