Reversal Based On Failure To Use Certified Interpreter For Jury Waiver Form

A divided panel, reversed conviction based on invalid jury trial waiver form which was printed only in English, signed by a non-English-speaking drug conspiracy defendant, and translated by his defense attorney; the attorney was not certified as an interpreter under applicable law and FRE 604 “provides a means for the court to qualify an individual as an interpreter, employing the methodology used for qualifying expert witnesses” under FRE 702, in United States v. Bailon-Santana, 429 F.3d 1258 (9th Cir. Dec. 6, 2005) (No. 04-50079)

Criminal defendants with no or limited knowledge of English have the right to have a trial court’s proceedings interpreted. The Court Interpreters Act requires the appointment of an interpreter in both criminal and civil actions brought by the federal government. See 28 U.S.C. §§ 1827-28 (the right extends to all judicial proceedings instituted by the U.S. and includes both pre-trial and grand jury stages of litigation). Once a court determines that an interpreter should be appointed, how can the court go about making an appointment? In addition to the procedures outlined by the Court Interpreters Act, FRE 604 provides a means of qualifying a person to serve an interpreter, as explained the Ninth Circuit in United States v. Bailon-Santana, an important case on the Court Interpreters Act and its requirements.

In the case, defendant Bailon-Santana was a native of Mexico and prior to commencement of his trial for a drug conspiracy, he executed a waiver of his right to a jury trial. During the bench trial, the defendant communicated through a court-certified interpreter. The defendant was convicted. The defendant appealed, contending that before the bench trial, he had signed a jury waiver that was printed only in English and that it had been translated for him by his attorney. The attorney represented on the form and during court proceedings that he had translated the form into Spanish for the defendant. One ground for the appeal was that the waiver was ineffective because the defendant was entitled to a translation of the waiver by an official interpreter, and not by his counsel, whose translation skills had not been certified.

A divided panel of the Ninth Circuit agreed, reversed and remanded the case. Despite the representations of defense counsel that he had translated the written waiver form, the defendant was entitled to “a properly-translated jury form” and the trial court was required to ensure that “the defendant has signed a properly translated form.” Bailon-Santana, 429 F.3d at 1261(noting that the defendant was entitled to certified interpretation and that this was an issue that should be addressed by the court in a colloquy inquiring into whether waiver of a jury trial right was knowing and voluntary).

In deciding this issue, the majority explained that defense counsel in this case was:

“…not certified as a Spanish-English interpreter-at least the record does not reflect that he is. Rather, in a signed statement he filed with the court, the attorney represented that he is ‘fluent in written and spoken English and Spanish languages’ and that he ‘accurately translated this entire waiver from English into Spanish to defendant’ …. The lawyer also stated that he had ‘carefully discussed this waiver of jury trial with [his] client,’ that he had ‘fully advised [his] client of his right to a jury trial and of the consequences of entering into this waiver,’ and that his ‘client's decision to enter into this waiver [was] an informed and voluntary one, and one in which [he] join[ed].’ At the jury waiver hearing, the court asked the defense attorney whether he had translated the waiver, and the attorney reiterated that he had done so.”
Bailon-Santana, 429 F.3d at 1260-61.


The majority concluded that these representations of language expertise were insufficient under applicable federal standards of the Court Interpreters Act:

“Certification as an official court interpreter is one way of ensuring competence, but it is not the only way. Where a certified interpreter is not ‘reasonably available,’ Federal Rule of Evidence 604 provides a means for the court to qualify an individual as an interpreter, employing the methodology used for qualifying expert witnesses. One way or the other, however, the record must reflect a determination, based on something more than the individual's say-so, that he has the requisite translating ability.”
Bailon-Santana, 429 F.3d at 1261 (citing 28 U.S.C. § 1827(b)(2)) (emphasis added).

The majority did not go beyond this characterization as to the nature of a FRE 604 determination. Rather, it explained that in the defendant’s case, the trial court’s finding that the defense attorney was qualified was lacking:

“The record here reflects only the defense lawyer's self-assessment. While we don't doubt that he was entirely truthful, we have no way of knowing whether he is even familiar with the standard used to certify interpreters, and thus we cannot be sure that his Spanish-speaking ability is as good as he believes it to be. We do not hold that an individual's self-assessment can never be a sufficient basis for a finding that he has the requisite fluency to serve as an interpreter. Rather, any self-assessment, if it is to be sufficient, must reflect a familiarity with the applicable standard, and must also reveal the basis for the assessment-such as a description of the training received in order to gain the requisite level of fluency. And, of course, the district court must make a finding that the interpreter is qualified as an expert witness and is competent to serve as an interpreter in a federal criminal proceeding. None of this happened here.”
Bailon-Santana, 429 F.3d at 1261.


Circuit Judge Johnnie B. Rawlinson dissented, noting that "[t]his case is a far cry from ... where the ability and credibility of the translator were legitimately called into doubt." The dissent explained that there was no error in the trial court inquiring "of the defendant and of his counsel regarding the circumstances surrounding the execution of the waiver. The certified court interpreter conveyed the court’s inquiries and remarks to Bailon-Santana. The record reflects no expression of surprise, confusion or objection from Bailon-Santana upon hearing that his counsel “served as the interpreter” during the jury waiver process.... Under the circumstances of this case, I cannot agree that the district court failed to discharge its responsibility of ensuring that the defendant’s jury waiver was voluntary, knowing and intelligent."

As Bailon-Santana suggests, in determining whether an interpretation has been performed by a qualified interpreter, the court should use the process employed in qualifying an expert witness. As noted above, FRE 604 expressly recognizes an interpreter as an expert. The case implies that as with an expert witness, the court record should reflect that the court was able to assess the interpreter’s qualifications in relation to (1) “the applicable standard” of language expertise as required under the Court Interpreters Act, and (2) a basis for believing that standard was met, such as the interpreter’s “training received in order to gain the requisite level of fluency.”

The circuit majority noted the basic requirement for the provision of translation was addressed by the Court Interpreters Act, as well as the program developed in the federal courts to deliver translation services:

“Congress requires federal courts to certify interpreters, like the one who translated for Bailon-Santana throughout the proceedings, for use in federal judicial proceedings. To be certified as a Spanish federal-court interpreter, an applicant must pass a rigorous written and oral examination, which requires native-level mastery of both English and Spanish. Many people claim ‘fluency’ in a foreign language, but ‘[t]here are few persons in the United States who can interpret with the degree of precision and accuracy required at the Federal court level.’”
Bailon-Santana, 429 F.3d at 1260 (citations omitted).

Federal Rules of Evidence
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