There is a Constitutional obligation to provide everyone with access to the courts. Every step of a case is important. Statements by attorneys and/or judges at conferences, hearings, and/or trial can help you piece your argument together; testimony by other witnesses alert you to things you may want to mention in your testimony; being able to communicate with your attorney at trial is essential to your case; and let’s not forget the importance of your own testimony.
The concept of Due Process is found in both the Fifth and Fourteenth Amendments of the United States Constitution. In pertinent parts, the Fifth Amendment guarantees that no person shall be deprived of “life, liberty, or property, without due process of law,” while the Fourteenth Amendment guarantees that no STATE shall “deprive a person of life, liberty, or property, without due process of law.”
Today, Constitutional Due Process, which has a substantive and procedural component to it, has been interpreted to protect the public at large. Substantive Due Process protects the public from unwarranted government intrusion interfering with a person’s fundamental rights. Procedural Due Process limits state and federal powers by requiring certain procedures to be followed in civil and criminal matters. Due Process guarantees that you will have your day in court—you must be provided with both notice and an opportunity to be heard. For a person with limited English proficiency (“LEP”), such constitutional guarantees are impeded.
The United States applauds itself for being the world’s melting pot. We have a large population of people with LEP. Pursuant to 42 Pa.C.S. § 4402, a person with LEP exclusively or primarily speaks a language that is not English and cannot sufficiently speak or understand English. People with LEP cannot fully participate or be heard in judicial proceedings unless their interpreter accurately interprets everything that is said in court.
An interpreter’s job is a highly skilled one. The Pennsylvania State Court Administrator established Rules of Professional Conduct for Judiciary Interpreters in accordance with 42 Pa.C.S. §§ 4411(e) and 4431(e). Rule 2 states that “[i]nterpreters shall render a complete and accurate interpretation or sight translation, without altering, omitting, or adding anything to what is stated or written, and without embellishment or explanation.” In the comments to Rule 2, it is further explained that the emotional emphasis of the speaker should also be conveyed during interpretation, along with “every statement spoken, even if it appears to be non-responsive, obscene, rambling, or incoherent.” However, verbatim, or literal oral interpretations are not deemed appropriate if it distorts the meaning of what is being translated.
Rule 2, essentially, prohibits interpreters from changing a person’s testimony while also giving them the discretion to make changes to testimony, if deemed necessary, so that the meaning of what is actually stated does not change. Query: what happens when a person with LEP has an interpreter who, within their discretion, misinterprets information and no one in the courtroom or conference room catches the error? Without proper language assistance, people with LEP may be excluded from meaningful participation in the judicial process—often times regarding their own case.
Spanish is my first language. I became an attorney in October 2021. In my short time practicing law, I have represented people with LEP. I have observed that interpreters paraphrase and give incorrect interpretations and that there are blatant issues that come with using telephonic interpretation services. In all of these situations, the finder of fact did not recognize the problem. The parties did not know that there was an issue with interpretation, but because Spanish is my first language, I was able to alert the finder of fact. People with LEP do not always have an attorney who speaks their primary language. The lack of accurate interpretations can cause unnecessary issues to arise in a case. When an interpreter misinterprets statements in a judicial proceeding, it may cause frustration to the finder of fact and may lead to unnecessary and additional judicial proceedings.
From my observations, improper interpretations have created appeals and trials that could have otherwise been avoided. When that happens, people with LEP are left with a bigger bill from their attorney, and the courts with a bigger docket of cases to hear.
There are many issues that our justice system needs to address because, as many know by now, it is not perfect. The legal system, as a whole, has a duty to make it easier for people with LEP to navigate the judicial system with more ease—our Constitution, specifically Due Process, requires it.
