|
William E. Martin and Peter N.
Thompson
excerpted from: William E. Martin and Peter N.
Thompson, Judicial Toleration of Racial Bias in the Minnesota Justice
System, 25 Hamline Law Review 235-270, 240-248 (Winter, 2002)(230
Footnotes Omitted)
The Racial Bias Task force concluded that, notwithstanding federal
and state statutes requiring competent interpretation, this
"extremely important and fundamental issue has been allowed to
become a 'stepchild' of the justice system ...." According to the
Task Force:
Minnesota has sizable and growing Hispanic and Southeast Asian
populations whose primary language is not English. The significant
increase in the size of Minnesota's non-English speaking populations
has resulted in an increased demand upon the court system to meet the
needs and protect the rights of people handicapped by language. The
existence of racial bias impedes the administration of justice. The
problems inherent with such bias are exacerbated by an inability to
communicate directly with people who cannot read, speak or understand
English, a difficulty that affects every phase of the judicial
process.
Ramsey County District Court Judge Salvador Rosas, a member of the
Task Force, explained to a legislative committee:
From one end of the state to another, members of the Southeast
Asian and Latino communities told of how they were deprived of their
rights .... There are people who have been victimized. As a defense
attorney, I represented hundreds of them. I know that many of them
went through the proceedings without understanding one word of what
was happening to them.
The legislature has funded programs to implement Task Force
recommendations for training and certification of court interpreters.
This funding augmented an aggressive legislative scheme already
requiring the courts to protect the rights of non-English speaking
litigants. The legislature has been far ahead of the courts on this
issue. As early as 1969, the Minnesota Legislature had recognized the
need for interpreters who would protect the constitutional rights of
deaf persons and others who had difficulty speaking and understanding
English. The current version of this statute establishes that it is
"the policy of this state that the constitutional rights of persons
handicapped in communication cannot be fully protected unless qualified
interpreters are available to assist them in legal proceedings."
Interpreters are to be appointed in "any proceeding in which a
person handicapped in communication may be subjected to confinement,
criminal sanction, or forfeiture of the person's property,"
including preliminary proceedings. According to the statute,
interpreters must be qualified as "able to communicate with the
handicapped person ... and accurately repeat and translate the
statements of the handicapped person."
Statutes also provide for the appointment of an interpreter for a
witness or litigant who is handicapped in communication in a civil
action or in any proceeding before a board, commission, agency or
licensing authority. The interpreter must be qualified as, "readily
able to communicate with the handicapped person, translate the
proceedings for the handicapped person, and accurately repeat and
translate the statements of the handicapped person to the officials
before whom the proceeding is taking place." Interpreter
legislation for civil trials also requires that the interpreter take an
oath requiring a "true interpretation to the handicapped person
being examined of all the proceedings, in a language which the person
understands, and that the interpreter will repeat in the English
language the statements of the handicapped person to the court
...." The Racial Bias Task Force made numerous specific
recommendations for additional procedural reforms, almost all of which
have been implemented.
While most would agree that the access to quality interpreters has
improved substantially in recent years, the present system remains
inadequate. In a newspaper article Chief Justice Blatz recognized the
continuing need for improvement in access to competent interpreters,
stating:
With a dramatic increase in non-English speaking immigrants
throughout Minnesota the courts desperately need more interpreters
.... It would be a gross miscarriage of justice if people couldn't
understand court proceedings because we didn't provide interpreters.
Besides the U.S. constitution requires courts to provide interpreters
for those who don't speak English.
In an accompanying article, the newspaper reported a story about a
non-English speaking Hmong man who pleaded guilty to violating a
protective order in court proceedings without an interpreter. When later
asked if he knew he had pleaded guilty the man responded, "No, I
wanted to see my wife."
Anecdotal reports, public statements of judges, and official Task
Force findings agree that, despite extensive legal protections, there
remains a shortage of qualified interpreters in the Minnesota court
system that impairs the fundamental fairness of the trial process for
non-English speaking litigants. Given this shortage and the widespread
claims of unfair treatment, appellate courts should be protecting the
trial rights of non-English speaking participants. But appellate judges
facing challenges to the adequacy of, or access to, interpreters
consistently have held that the specific judgment being questioned
should not be reversed. While the Minnesota appellate courts have
addressed dozens of appeals raising a variety of issues challenging
access to adequate interpretation, the courts have consistently
concluded that there was no significant unfairness at trial. Appellate
court opinions suggest there is no problem with access to or quality of
interpreters in Minnesota. Only once has a criminal trial been reversed
because of a trial error involving an interpreter. Either the Task Force
findings, the judges' public statements and newspaper reports are
unfounded, or the Minnesota appellate courts have too much tolerance for
unfairness in the trial process.
The Racial Bias Task Force findings imply that the courts have been
too lax in enforcing existing rights, stating, "notwithstanding the
existence of a strong state statute ... there is much to be done and a
long way to go before full compliance with existing law can be
achieved." The Task Force also reported that, "the Public
Hearing testimony clearly indicates that despite these guidelines there
are substantial problems with the quality of interpreters used in
Minnesota courts." Further, the Task Force urged the Minnesota
Supreme Court to uphold "a standard of excellence in this area by
condemning prejudice in any form and by insisting upon proper procedure
and competent interpreters in our courts." The Task Force concluded
that "the stakes are too high to settle for mediocrity or for less
than what is provided in the federal system."
In its public statements and in its administrative capacity, the
Minnesota Supreme Court has consistently expressed an intention to
uphold the highest standards for proper interpretation as part of the
guarantee of a fair trial. In its judicial capacity, however, the court
is willing to overlook major flaws in the trial process.
For example, in the newspaper article discussed above, Chief Justice
Blatz plainly stated that the accused has a constitutional right to an
interpreter. In its decisions, however, the Minnesota Supreme Court
strikes a different note. Minnesota appellate courts have repeatedly
stated that the issue of whether an accused gets a competent interpreter
is a matter of discretion and not a matter of fundamental right. Perhaps
the courts do not actually mean that trial judges have the discretion
not to appoint an interpreter when a defendant is handicapped in
communication, or the discretion to permit inadequate interpretation.
Trial judges must make preliminary findings, however, that require an
exercise of judgment. A trial judge must assess whether the accused is
in fact handicapped in communication. In reviewing this preliminary
question, the appellate courts frequently defer to the fact finder.
Describing the entitlement to an interpreter of an accused who is
handicapped in communication as a matter of discretion, and not as a
matter of fundamental fairness, however, denigrates the importance of
the constitutional right. This regular portrayal of the
"right" as discretionary is consistent with the appellate
courts' substantial tolerance for trial court decisions resulting from
flawed interpretation or from violation of the rules designed to insure
the fairness of the trial process.
Minnesota appellate courts have been satisfied with the fairness of
trials even in cases presenting clear violations of applicable statutes
or court rules designed to insure adequate interpretation. To
"protect the constitutional rights" of persons handicapped in
communication, the legislature has required that all confessions by such
individuals be obtained only with the aid of qualified, independent
interpreters. Yet, the Minnesota Supreme Court has often held that a
violation of this statute does not affect the admissibility of the
confession involved. This statute and Minnesota Rule of Evidence 604
require that interpreters be qualified experts interpreting under oath.
Yet, the Minnesota Supreme Court has treated these requirements as
procedural niceties not critical to protect the fairness of the trial
process. The courts have affirmed convictions in cases where the record
did not reflect any expert qualifications for the interpreter or show
that the "expert" interpreter had been sworn to provide a true
translation of the testimony. In State v. Montalvo, the Minnesota
Supreme Court affirmed a conviction even though the trial judge had
instructed the interpreter that a word for word translation for the
accused was unnecessary, leaving the non-attorney interpreter to judge
what the accused needed to know.
Rather than insisting on the standard of excellence called for by the
Task Force, the Minnesota Appellate Courts have tolerated substantial
deviation from the statutes and the Minnesota Supreme Court's own rules.
Even when faced with clear error, the Minnesota Supreme Court invariably
has failed to require a new trial with access to adequate
interpretation. The court has not vigorously protected the rights of
non-English speaking litigants.
When trial judges disregard procedures designed to assure the
competence of interpreters, erroneous interpretations can result. In
State v. Mitjans the court addressed challenges to the accuracy of
translated testimony. The court of appeals had reversed Mitjans' murder
conviction. The Minnesota Supreme Court upheld the conviction, adopting
a legal standard that now makes it virtually impossible for a criminal
defendant to obtain appellate relief for a conviction based on faulty
translation. In adopting this standard, the court said that "[t]ranslation
is an art more than a science, and there is no such thing as a perfect
translation of defendant's testimony. Indeed in every case there will be
room for disagreement, among expert translators over some aspects of the
translation." Without focusing on the specific errors in
translation, the court concluded that there should be no reversal
because it found the translation "on the whole" to be adequate
and accurate.
According to the court, fairness of the trial process is not fatally
impaired by an unqualified interpreter, or an interpreter who does not
swear to provide an accurate translation, as long as the translator gets
"the gist of it." The standard adopted in Mitjans is
problematic in criminal cases, where reasonable doubt is the issue. In
these cases defense efforts focus on the details, not just the
prosecutor's general theme. Cross-examination, as a tool for
ascertaining truth, is substantially blunted if the interpreter, while
getting the gist of the testimony, mistranslates both the questions and
the answers, depriving the jury of the details.
In fairness to the appellate courts, many of the issues involving
interpreters arrive on appeal with flawed records. Often, defense
counsel has failed to make a proper objection or a proper offer of
proof. Thus, the right to an interpreter frequently is trumped by
judicial efficiency and concerns about preserving the adversary system.
In Mitjans, however, the court had a full trial record and every
opportunity to address the issue of fairness to non-English speaking
participants, but the court adopted a standard that tolerates
inaccuracy.
A second case in which the appellate courts had a full record
presenting significant issues of flawed interpretation was the New Chue
Her case. On appeal the defendant filed a pro se supplemental brief
alleging errors in the translation of testimony at trial. The court of
appeals initially had affirmed the conviction, but had not addressed the
issues raised in the pro se supplemental brief. The supreme court
therefore remanded the case.
On remand, expert interpreters were retained to review the trial
audio tapes and compare them with the transcripts. Daniel Mou, a fully
qualified expert interpreter presented an extensive report detailing
more than 466 errors in translation. His report concluded:
Discrepancies consisted of omissions of crucial segments of testimony
and examination questions, outright misinterpretation, use of euphemisms
for vulgar and obscene terms, and extensive paraphrasing. The underlying
problem seems to be the interpreter's lack of English proficiency. Both
interpreters had a tendency to add non-volunteered detail to actual
testimony and misinterpret examination questions resulting in
non-responsive testimony and examination. Short questions and answers
were properly interpreted to an extent, however, lengthy and more
sophisticated questions and answers were often misinterpreted and/or
interpreted out of context.
Further, the record did not reflect that the trial interpreters had
been qualified as experts or sworn as witnesses. All four expert
witnesses who testified at the remand hearing agreed that there were
errors in interpretation of trial testimony, although there was
disagreement about some of the alleged errors and their likely effect on
the case.
The court of appeals recognized that some of the translation errors
strengthened the state's theory of the case that the victim was "an
uneducated, woman, taken advantage of by an experienced and
well-educated Her." The court agreed, however, that a proper
interpretation would have exposed inconsistencies in the victim's
testimony that could have been explored further during her
cross-examination. In spite of these potentially prejudicial errors, the
court of appeals applied the Mitjans standard and found the
interpretation on the whole was "adequate and accurate." The
court also decided that appellant had waived the claim that the
interpreters were not qualified, and that the trial judge reasonably
inferred that one of the interpreters was sworn in.
The court of appeals likely is correct that the flawed interpretation
at trial did in factconvey the gist of the victim's testimony. Of
course, in this rape case the gist of the victim's testimony,
communicated by the interpreter, was that she was raped. The details of
a rape claim, developed through cross-examination, provide the
opportunity for the defense to prove innocence or establish reasonable
doubt. The court of appeals did not explain how an attorney can
effectively cross-examine and follow up on answers when both the
questions and the answers have been erroneously interpreted.
The New Chue Her case gave the Minnesota Supreme Court an opportunity
to put teeth into statutes regulating the use of qualified interpreters
in Minnesota. New Chue Her presented an opportunity for the court to
address the problems identified by the Racial Bias Task Force. The
supreme court chose not to address the problem of inaccurate
translations and denied the petition for review.
Within one week after the decision denying review in New Chue Her,
Supreme Court Justice Page publicly addressed the need for accurate
translations. Speaking in the context of implementing the proposals of
the Racial Bias Task Force, Justice Page forcefully advocated reforms in
the interpreter process. In the press, justices speak in the strongest
terms about protecting against racial bias and the related need for
accurate interpretation. When asked to address these issues in its
judicial capacity, however, the court has resisted providing guidance
and leadership.
The court's reluctance to address this issue cannot be explained as a
concern about overstepping its judicial role. Traditionally, decisions
and opinions, in contested cases fully briefed and argued, provide the
proper venue for the exercise of the judicial function. Justices usually
do not attempt to deal with fair trial issues through committees or in
newspaper articles. Protecting the constitutional and statutory rights
of persons handicapped in communication skills does not call for
inappropriate judicial activism; it calls for judges to strictly apply
existing statutes and court rules. Even without such statutes, insuring
fundamental fairness to all participants in trials in Minnesota through
access to qualified interpreters is an inherent part of the court's
constitutional responsibility.
Why then is the court reluctant to implement in its decisions the
views that the justices advocate publicly and in committees? The court
correctly observes that different interpreters might disagree on the
proper interpretation of the same testimony. Proper interpretation
requires that interpreters exercise judgment and understand context.
This fact should encourage the courts to insist that only interpreters
who are fully trained and qualified are allowed to provide testimony at
trials, rather than justify the appellate courts' "anything
goes" approach to reviewing issues involving interpreter errors.
Interpreters are expert witnesses just as medical witnesses are experts.
Expert interpreters, like medical experts, may disagree. Courts,
however, carefully police the qualifications of medical experts and the
foundation of medical experts' opinions. The same scrutiny should be
applied to the qualifications of interpreters and the foundation of the
interpreter's expert translation.
The court's tolerance for shoddy interpreter practices could perhaps
be justified by an interest in crime prevention or victim protection.
Many of the issues arise in the context of prosecutions for violent
crimes. Appellate courts may be reluctant to reverse these convictions
obtained through imperfect procedures. Furthermore, as a practical
matter, qualified interpreters are scarce. To require the presence of
qualified interpreters at trials and plea hearings throughout the state
might delay the trial process until a qualified interpreter can be
located. Moreover, training and compensating qualified interpreters is
expensive.
Similar arguments were made when addressing issues involving other
basic trial rights like the right to counsel, the right to cross-examine
witnesses, and the right to appeal. Judicial economy and crime
prevention do not justify basic unfairness in trial process. A
conviction based on a trial where the jury hears inaccurate testimony on
key points because of errors in translating the questions and answers is
not a fair trial. At present, the appellate courts are willing to accept
substantial unfairness in access to competent interpretation in trial
procedures. |
