Rule IV. Procedures
Effective September 24, 2008
1. Determining Need for Interpretation.
a) Appointing an interpreter is a matter of judicial discretion. It is the responsibility of the court to determine whether a participant in a legal proceeding has a limited ability to understand and communicate in English.
b) An interpreter should be appointed in a criminal case when the defendant:
1) Is unable to accurately describe persons, places, and events that affect his or her defense;
2) Is unable to tell the court “what happened” over a period of time;
3) Is unable to request clarification when statements are vague or misleading, particularly during cross-examination, to defend his/her position, or otherwise to participate in his/her defense;
4) Is not on an equal footing with an English-speaking defendant with an equivalent education and background.
c) The court shall use the services of multiple interpreters when necessary to aid interpretation in court proceedings.
Commentary 1.
Recognition of the need for an interpreter may arise from: a request by a party or counsel for the services of an interpreter, from the court's own voir dire of a party or witness, or from disclosures made to the court by parties, counsel, court employees or other persons familiar with the ability of the person to understand and communicate in English.
Commentary 2.
The court may wish to consider using multiple interpreters in legal proceedings when one or more of the following situations exist: (1) For proceedings lasting longer than thirty minutes of continuous interpreting, regular breaks should be allowed every thirty minutes. A similar standard should be maintained for lengthy or continuous witness interpreting; (2) Legal proceedings lasting more than two hours--generally, in legal proceedings lasting more than two hours, a team of two interpreters should be designated to ensure the accuracy and completeness of the record by allowing interpreters to alternate work and rest in short shifts, thus avoiding fatigue; (3) Multiple defendants--one or more interpreters may be appointed (apart from the interpreter(s) who are interpreting the legal proceedings) in order to provide interpreting services for attorney-client communications during the proceeding.
Commentary 3.
The interpreter's role is an exacting one, physically and mentally. There is evidence that an interpreter's performance deteriorates after thirty minutes of continuous interpreting. Studies show that the deterioration is not gradual but a steep plummeting.
Commentary 4.
If team interpreting is simply impossible, the court has an obligation to provide regular breaks (every thirty minutes for ten-minute intervals). A qualified interpreter has the obligation to inform the court whenever fatigue is beginning to interfere with the accuracy of the interpretation.
2. Waiver of Interpreter.
a) A non-English speaker may at any point in the proceeding waive the services of an interpreter. The waiver of the interpreter's services must be knowing and voluntary, and with the approval of the court. Granting this waiver is a matter of judicial discretion.
1) Procedure.
i) The waiver is approved by the court after explaining in open court to the non-English speaker, through an interpreter, the nature and effect of the waiver; and
ii) The court determines in open court that the waiver has been made knowingly, intelligently, and voluntarily.
iii) If the non-English speaker is the defendant in a criminal matter, the court must further determine that the defendant has been afforded the opportunity to consult with his or her attorney.
2) At any point in any proceeding, for good cause shown, a non-English speaker may retract his/her waiver and request an interpreter.
3. Interpreter Oath.
a) All interpreters, before commencing their duties, shall take an oath that they will make a true and impartial interpretation using their best skills and judgment in accordance with the standards and ethics of the interpreter profession. See Section III, 8, (a).
4. Audio Recording.
a) All interpreted proceedings shall be recorded to preserve the original source and target language as well as interpretation.
Commentary 1.
A proper record of the interpretation will allow for an accurate record in case of appeal. This will also allow interpreters to document their interpretation in the event of any challenges.