The increasing awareness shown by the courts of

the unfairness of prosecuting a person who cannot understand the nature of the proceedings against him paved the constitutional road to the enactment of the Court

Interpreters Act. The United States Court of Appeals for the First Circuit in Carrion concluded that "the right to confront witnesses would be meaningless if the accused could not understand their testimony...." 488 F.2d at 14. Non-English-speaking defendants must have a right to court-appointed interpreters because "no defendant should face the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment." Id. Similarly, the Supreme Court of Arizona, in Natividad, characterized an uninterpreted trial of a non-English-speaking defendant as "fundamentally unfair. 111 Ariz. at 194, 526 F.2d at 733.

In 1970, the leading case of United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970), by unequivocally declaring that a non-English-speaking defendant had a constitutional right to a court-appointed interpreter, finally enunciated a constitutional standard for courts and litigants to follow. The Spanish-speaking Negron, who sought a writ of habeas corpus, had sat in total incomprehension through his murder trial conducted in English, for only sporadic translated summaries of the proceedings had been afforded him. In holding that "the lack of adequate translation for [the defendant] of those portions of his .. murder trial which were conducted in

...

English rendered the trial constitutionally infirm," 434 F.2d at 387, the court went beyond the constitutional right of confrontation of the Sixth Amendment.

Invoking the due

process clause of the Fourteenth Amendment, the court concluded that, because of the Government's failure to provide adequate and competent interpretation, the

defendant's trial "lacked the basic and fundamental

fairness" required by the Constitution.

Id. at 389.

The earlier case of Ex parte Cannis, 173 P. 2d 586

(Okl. Crim. 1946), had also relied upon the due process clause to overturn a conviction on the ground that an interpreter had been improperly denied. The Oklahoma Criminal Court of Appeals, in reviewing a rape prosecution marked by numerous constitutional violations, maintained that the "fair and impartial" trial guaranteed by the due process clauses in the Fourteenth Amendment of the United States Constitution and in Article II, Section 7 of the Oklahoma Constitution included the right to an interpreter when needed to enable the defendant to understand the

proceedings.

The Second Circuit in Negron, echoing the reasoning of the court in Cannis, stated that

:

even

the right that was denied Negron seems to us
more consequential than the right of confrontation.
Considerations of fairness, the integrity of the
fact-finding process, and the potency of our
adversary system of justice forbid that the state
should prosecute a defendant who is not present at
his own trial, unless by his conduct he waives that
right. And it is equally imperative that every
criminal defendant if the right to be present is
to have meaning -- possess "sufficient present
ability to consult with his lawyer with a reasonable
degree of rational understanding." Otherwise,
"[t]he adjudication loses its character as a
reasoned interaction...and becomes an invective
against an insensible object."

434 F.2d at 389 (citations omitted).

The Negron opinion epitomizes the growing awareness and concern of the courts, prior to the enactment of the Court Interpreters Act, that non-English-speaking defendants were being deprived of vital constitutional rights. The courts have concluded that concerns regarding confrontation of witnesses, cross-examination, and adequacy of counsel involved in the refusal to provide an interpreter, work to deprive the non-English-speaking defendant of his right to a fair trial guaranteed by the due process clauses of the Fifth and

Fourteenth Amendments, as well as his specific rights under the Sixth Amendment. Indeed, noting its concurrence with the Negron decision and anticipating the passage of the Court Interpreters Act, the court in United States ex rel. Navarro v. Johnson, 365 F. Supp. 676 (E. D. Pa. 1973), stated in dictum that, "in cases to come the courts will recognize the implications of the constitutional problem when an interpreter is not

present." Id. at 682 n.3.

The Negron court recognized, moreover, that the quality, and not merely the presence, of the interpreting services provided to the non-English-speaking defendant is critical in determining whether his constitutional rights have been protected. Holding that the lack of adequate translation rendered Negron's trial constitutionally infirm, the court enunciated the first constitutional requirement that "a court, put on notice of a defendant's severe language difficulty, 【must】 make unmistakably clear to him that he has a right to have a competent translator assist him, at state expense if need be, throughout his trial." 434 F.2d at 391 (emphasis added).

Still, the language of Negron left broad

-

discretionary powers to judges in appointing interpreters and in determining their competency. Moreover, judges were placed in the untenable position of having to assess the linguistic proficiency of a language-handicapped litigant and, perhaps more importantly, the competence of an appointed interpreter a task for which they were not necessarily qualified. In the early 1970's, a study by the U.S. Commission on Civil Rights and one by the Institute for Court Management summarized these concerns and described the highly ineffective system of interpretation services used in the courts. U.S. Commission on

Civil Rights, Mexican Americans and the Administration of Justice in the Southwest United States Commission on Civil

Rights

Report, March, 1970. Washington, D. C.: U.S.

Commission on Civil Rights, 1970; Institute for Court
Management, Justicer System Interpreter Certification: Task
Force Report. Los Angeles, CA, both cited in E. Arjona,
"Language Planning in the Judicial System: A Look at the
Implementation of the U.S. Court Interpreters Act", 9 Language
Planning Newsletter No. 1, February 1983, East-West Culture
Learning Institute, East-West Center, Honolulu, HA.

Subsequently, standards established by the Negron decision were codified into procedural and evidentiary statutes that regulated the appointment of court interpreters. These statutes, however, failed to adequately provide the language-handicapped defendant with the needed protection of his constitutional rights. This statutory deficiency prompted the introduction of legislation, such as the Bilingual Courts bills, precursor legislation for the Court Interpreters Act, which were introduced in 1973 by Senator Tunney and others. These bills were the first attempts to resolve the issues concerning court interpreters at the federal level. See S. 565/H. R. 8324 and H. R. 10228; S. 1724/H. R. 7728 and H.R. 7777, cited in Arjona, Language Planning, supra. The House of Representatives, however, did not complete action on either of these bills.

Finally, responding to the need for codified

standards for court interpreters, the 95th Congress, building on the previous proposed legislation, unanimously passed the Court Interpreters Act in 1978.

IV

THE COURT INTERPRETERS ACT

The Court Interpreters Act (the "Act") was passed by Congress in October, 1978 and became effective in January, 1979. As stated in the House Report, the purpose of the

Act is "to require the appointment of interpreters, who have been certified by the Director of the Administrative Office of

the U.S. Courts, in Federal, civil and criminal proceedings
under specified conditions ... and
to provide more

effectively for the use of interpreters in Federal district courts." H. R. Rep. No. 95-1687, 95th Cong., 2d Sess. (1978), reprinted in 1978 U.S. Code Cong. & Ad. News 4652.

A. Pertinent Provisions of the Act

The provisions of the Act which are pertinent to the issues being addressed herein are as follows [28 U.S.c. § 1827(a)

§ 1827(e) (1)]:

(a) The Director of the Administrative Office of the United States Courts shall establish a program to facilitate the use of interpreters in the courts of the United States.

(b) The Director shall prescribe, determine, and certify the qualifications of persons who may serve as certified interpreters in the courts of the

United States in bilingual proceedings . . . and in so doing, the Director shall consider the education, training and experience of those persons. The Director shall retain a current master list of all interpreters certified by the Director and shall report annually on the frequency of requests for, and the use and effectiveness of, interpreters . .

(c) Each United States District Court shall maintain on file in the office of the clerk of court a list of all persons who have been certified as interpreters, including bilingual interpreters by the Director of the Administrative Office of the United States Courts in accordance with the certification program established pursuant to subsection (b) of this section.

(d) The presiding judicial officer, with the assistance of the Director of the Administrative Office of the United States Courts, shall utilize the services of the most available certified interpreter, or when no certified interpreter is reasonably available, as determined by the presiding judicial officer, the services of an otherwise competent interpreter, in any criminal or civil action initiated by the United States in a United States district court . . . if the presiding judicial officer determines on such officer's own motion or on the motion of a party that such party (including a defendant in a criminal case), or a witness who may present testimony in such action

1. speaks only or primarily a language other than the English language...

so as to inhibit such party's comprehension of the proceedings or communication with counsel or the presiding judicial officer, or so as to inhibit such