When courts are and are not obligated to provide interpreter services
By Heather Falks, Deputy General Counsel and Manpreet Kaur, Language Access Director• Office of Judicial Administration
Individuals have a constitutional right to access the courts [footnote 1] and essential to that access is their ability to understand the proceedings. Individuals with communication disabilities or limited English proficiency require interpreters to assist them in obtaining full access to the courts.
The court’s obligation
Every person who cannot speak or understand the English language or who—because of hearing, speaking, or other impairment—has difficulty communicating with other people, and who is a party to, or a witness in, a court proceeding is entitled to an interpreter to assist the person throughout the proceeding. [footnote 2]
The Supreme Court has held that Title VI requires entities receiving federal funds to give meaningful access to language services for individuals with limited English proficiency and a failure to do so constitutes national origin discrimination. [footnote 3] Many of the grants distributed to Indiana trial courts are federally funded. As recipients of federal funds, Indiana courts have an obligation under Title VI to reduce language barriers that preclude court access for limited English proficiency individuals.
The ADA prohibits public entities from excluding or denying an individual’s participation in services, programs, or activities due to a disability. [footnote 4] In Prakel v. Indiana, the court ruled that all public court sessions constitute services, programs, or activities within the meaning of 42 U.S.C § 12132. [footnote 5] The ADA requirement to provide effective communication applies to both litigants and observers in the gallery.
Often, advance notice is required to ensure that a proper interpreter is available, though there will be times when the court does not have advanced notice of the need. In those circumstances, the court should make every effort to provide the requested accommodation, but if timing is prohibitive, then an effort should be made to continue the proceeding until the proper accommodation can be given.
Example situations
It’s such short notice
Suparna has an infraction case and goes before the court on Monday for a bench trial. She needs a Punjabi interpreter, but it’s Friday, and there’s little time to arrange it. Can the court use LanguageLine for interpreter services?
Answer
No, LanguageLine interpreters are not court-certified/qualified interpreters. A bench trial is a complicated proceeding that involves the presentation of evidence. LanguageLine interpreters should only be used for short pre-trial conferences. A court-qualified interpreter should be used for both bench and jury trials, so this proceeding should be continued until one is available.
It’s a short hearing
Win is Burmese and was charged with possession of marijuana. They do not speak English and their change of plea hearing is set for next week. It is expected to last 30 minutes. Does the court need to provide an interpreter?
Answer
Yes, the court must provide a court-certified/qualified interpreter for this hearing. LanguageLine is not appropriate due to the nature of the hearing, regardless of length. A change of plea requires the defendant to know and understand exactly what rights they may be waiving by changing their plea. It is essential to have a court-qualified interpreter for these types of proceedings.
It’s for the prosecutor’s key witness
Tomorrow, the prosecutor will depose a witness in a criminal case who speaks only Spanish. The prosecutor’s office called the court seeking an interpreter for the deposition. How should the court respond?
Answer
The court does not provide interpreters for individual parties. If one of the parties in a case needs an interpreter for depositions, then they are required to obtain the interpreter themselves. The court is responsible for providing interpreters for court proceedings and court-mandated activities.
But it’s not a courtroom proceeding
Maria and Diego are engaged in a custody dispute. Both Maria and Diego speak Spanish, and the court has provided a Spanish interpreter for all court proceedings. The court has ordered the parties to participate in mediation. Does the court have to provide an interpreter for the court ordered mediation?
Answer
Yes, courts must provide interpreters for any court-ordered activities. If the court is requiring the parties to participate in an activity, then the court must also provide a court-certified/qualified interpreter to facilitate the activity.
But they didn’t need an interpreter last time
Amarti was charged with Assault and Battery with serious bodily injury. She speaks an Oromo Harar dialect. She is married to an American citizen and has been in the U.S. for over 25 years. She has communicated with the court before, did not appear to need an interpreter, and did not request one in the past. Amarti’s lawyer just called to request an interpreter for a hearing next week. The court has communicated with her in the past and knows she can communicate in English and understands English. Does the court need to provide an interpreter?
Answer
Yes, the court should provide a court-qualified interpreter for court proceedings. It is possible the litigant knows enough English for basic conversation but is not proficient enough to understand complex speech. The terminology used in a courtroom is specialized.
Since Amarti has private counsel, the court could do an indigency finding as it relates to providing an interpreter for communications between attorney and client, but regardless of the indigency findings, the court should provide an interpreter for all court proceedings.
Their daughter speaks both English and Spanish
Ana and Feliz are getting divorced. They have a daughter, Maya, who is 12 years old. Ana has asked the court for provisional orders on child support, property, parenting time, and a protective order. At the hearing, Ana appears by video and is represented by private counsel; Feliz appears in person without a lawyer, but with Maya at his side. Ana and Maya both speak English and Spanish, but Feliz speaks only Spanish. Maya has interpreted for her father at the clerk’s office and throughout the process so far. For the provisional hearing, does the court need to provide an interpreter? Or can Maya—whose English is excellent—interpret for Feliz as she has been doing so far?
Answer
No, a court-certified interpreter should be provided. Family members cannot provide interpretation services during court proceedings, in part because issues of bias and accuracy could arise.
Although this hearing only involves provisional orders, those provisional orders are going to impact access to property and property rights. Therefore, it would be best to have an interpreter present. However, if an in-person interpreter is not available then using LanguageLine is an acceptable alternative but is not preferred due to the property interests involved.
Both parties have private counsel
Mei xing and Chao speak only Mandarin. They have filed for divorce and asked the court to provide an interpreter. Both are represented by private counsel. Does the court have to provide an interpreter for the divorce proceedings?
Answer
Yes, the court must provide a court-qualified interpreter for all court proceedings. The parties are responsible for obtaining interpreter services to facilitate communication with their private attorneys.
How many interpreters does it take?
Chad is charged with domestic battery and will soon have a jury trial. Chad is deaf and communicates using American Sign Language; his mother is also deaf. She has notified the court she intends to attend the trial and requests that an ASL interpreter be provided for her. How many ASL interpreters does the court need to proceed with trial?
Answer
The ADA requires courts to accommodate defendants, witnesses, and observers, so the court must provide enough interpreters for everyone who needs one to see them throughout the proceeding. ASL interpreters should generally work in pairs to trade off when one is fatigued. If interpreters are needed in two locations in the courtroom, that means four interpreters. The court should also record the hearing, ensuring preservation of the interpretation in case it is needed on appeal.
What if a person with hearing impairment doesn’t know ASL?
George is appearing for his initial hearing on a DUI charge and informs the court that he recently lost his hearing and does not know ASL. George asks the court if his wife, Lucy, can sit at the table with him and write down what is said. Should the court permit this?
Answer
No, Lucy cannot serve as an interpreter or advisor to George during any hearings. Individuals who are deaf but do not know sign language need Communication Access Realtime Translation services. CART services provide live transcription on a screen for the participant to read. The ADA requires the court to provide CART services in this situation.
No interpreter is available
Chatri received a traffic ticket for speeding 20 mph over the speed limit. This is his first interaction with the court. Chatri is from Thailand, speaks Karen, and does not speak or understand any English. The court cannot find an interpreter that speaks Karen. There are no court-certified/qualified Karen interpreters on the Indiana Supreme Court’s registry, and none of the language agencies the court has used in the past have a Karen interpreter. How should the court proceed?
Answer
An interpreter still needs to be provided. Contact the Office of Judicial Administration at [email protected] for assistance with finding the necessary interpreter.
Funding
Lack of funding can be a barrier to providing interpreter services. Every fall, the Office of Judicial Administration accepts interpreter grant applications. Though amounts may vary from year to year, OJA was able to provide more than $700,000 in 2022. Trial courts should plan ahead and apply for grants to cover these costs.
LanguageLine
Every court in Indiana has access to LanguageLine Solutions®, a telephonic interpretation service. Use of this service should be limited to brief, non-contested hearings and routine matters only because these interpreters are not court-certified/qualified interpreters. LanguageLine should not be used for any evidentiary proceedings, guilty pleas, long hearings, or contested proceedings or trials.
The requirement for court-certified and qualified interpreters
Courts must pay careful attention to the quality of the interpreters they hire. Simply speaking two languages does not qualify someone to be a court interpreter. Interpretation requires a high level of fluency in both English and the target language.
To ensure quality interpretation services, the Office of Judicial Administration hosts a Court Interpreter Certification Program. This program establishes a statewide credentialing process for court interpreters to become either certified or qualified, depending upon the availability of an oral examination in the target language of expertise.
Candidates who complete the program are listed on the Supreme Court’s interpreter registry. Courts should use certified and qualified interpreters because inaccurate interpretation or translation can jeopardize a litigant’s life, liberty, and/or property. Inaccurate and or incomplete information may also interfere with the court’s ability to determine the facts and properly dispense justice.
The Indiana Supreme Court warns us that
it is imperative to ensure accurate interpretation throughout the proceedings lest we run the risk of diminishing our system of justice by infringing upon the defendant’s rights of due process.
Ponce v. State, 9 N.E.3d 1256, 1269 (Ind. 2014). Providing appropriate interpreters is essential to facilitating the constitutional right of access to the courts.
Footnotes
1 Tennessee v. Lane, 541 U.S. 509, 523 (2004) (citing Faretta v. California, 422 U.S. 806, 809 n.15 (1975)).
2 I.C. § 34-45-1-3. Ponce v. State, 9 N.E.3d 1265, 1272 (Ind. 2014).
3 Lau v. Nichols, 414 U.S. 563, 566-569 (1974).
4 42 U.S.C. § 12132.
5 Prakel v. Indiana, 100 F.Supp.3d 661, 682 (S.D. Ind. 2015).