Many defendants have either limited or no ability to speak English. Thus, the court will supply interpreters in those cases where defendants require such services so that they can understand and participate in the proceedings. Before COVID, live interpreter services were typically provided in court during any proceeding where they were required. During the pandemic, many proceedings, including those where interpreters were used, were conducted virtually because in-person court appearances were suspended for health reasons. Although live appearances have been largely reinstated, many hearings, including those requiring interpreters, are still conducted virtually. Our Supreme Court recently considered whether a trial court may provide interpreter services in a virtual format during a live criminal jury trial.
In State v. Juracan-Juracan, the defendant spoke Kaqchikel, a language spoken by only 450,000 people worldwide. The trial court provided him with an interpreter at his request. However, the only available interpreter resided on the West Coast, and therefore appeared virtually. Further, this interpreter did not speak English, but only Kaqchikel and Spanish; accordingly, a second interpreter was required to translate from Spanish to English. This arrangement was apparently satisfactory for pre-trial proceedings. The defendant moved for in-person interpreter services at trial. The trial court denied this motion, asserting that it would be possible to manage this issue at trial using the same format employed to that point. The Appellate Division denied the defendant’s motion for leave to appeal, but the Supreme Court agreed to hear the case.
In reversing, the Court recalled that there is a presumption in our courts that interpreter services will be provided in-person. Such services were important because they helped guarantee many of a defendant’s basic rights, including a defendant’s right to be present at trial, to fully understand what was happening during the proceedings including, without limitation, all witness testimony, and to communicate effectively with defense counsel. Thus, the Court tied interpreter services to the defendant’s constitutional guarantees of confrontation and effective assistance of counsel.
Against this backdrop, the Court set forth a list of factors that trial courts were to use in assessing whether interpreter services may be provided virtually, as opposed to in-person, at criminal jury trials. The Court began by noting that there was a presumption of live interpreting services at such proceedings. In determining whether interpreting services could be provided virtually in any given case, trial courts were to consider: (a) the nature, length and complexity of the trial; (b) the number of parties and witnesses involved; (c) whether an interpreter is available to interpret in-person at trial; (d) The impact that any substantial delay in obtaining an in-person interpreter would have on the defendant, co-defendants or victims; (e) whether the defendant tentatively plans to testify; (f) the financial cost of having in-person, versus virtual, interpreting; and (g) whether the interpreter believes they can perform their job accurately and meet professional standards while interpreting virtually. In concluding, the Court observed that guardrails should be put in place to guarantee a fair trial for defendants in those rare cases where virtual interpreting is used, and a trial court’s decision to use virtual interpreting at trial must be approved by the Assignment Judge or Presiding Criminal Judge. The Court also stressed the difference between pre-trial proceedings which may be more amenable to virtual interpreting, as opposed to criminal trials where a defendant must have the ability to communicate spontaneously with their attorney.
The decision is important because it helps guarantee a criminal defendant’s basic trial rights, such as the right to understand and participate in their trial, as well as the right to communicate with their attorney in a free and uninhibited manner. Thus, it goes to the heart of a criminal defendant’s most fundamental constitutional trial rights.
James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey. Mr. Friedman represents defendants in criminal cases in the New Jersey Superior Court in all counties, all New Jersey municipal courts, and the United States district courts in New Jersey and New York City. If you have a criminal charge in one of these courts, start planning your defense by contacting Mr. Friedman to discuss your case.