By Alexa Gervasi, ACLR Featured Online Contributor

“Who gave this sonofabitch a green card?” To actor Sean Penn, this was the appropriate question to ask before bestowing the 2015 Academy Award for Best Picture on director Alejandro González Iñárritu.1 Winning for his film “Birdman,” Iñárritu graciously swarmed the stage with the film’s cast, approached the microphone, and laughed that he was elected to speak because he had the worst English of anyone on stage. Though intending their comments to be jovial, both Penn and Iñárritu represent a serious problem that burdens the American criminal justice system—ignorance and insensitivity for cultural diversity. In the trial system, there is no guarantee that a person lacking English proficiency will have access to an interpreter, certainly inhibiting their right to a fair trial.

Twenty-one percent of people living in the United States speak a language other than English at home.2 More than 13 million people living in the United States speak English either “not well” or “not at all”;3 yet neither the Constitution nor the Supreme Court guarantee the right to interpretive assistance in criminal trials. The Court Interpreters Act of 1978, signed into effect by President Carter, requires the use of a certified interpreter in a proceeding initiated by the United States, where a judge determines that the defendant “speaks only or primarily a language other than English.”4 Many states have similar statutes or constitutional provisions;5 however, neither the Court Interpreters Act nor state policies have the consistency or comprehensiveness to adequately address the needs of defendants.

Lacking explicit guidance from the Constitution and Supreme Court, many states have taken it upon themselves to address the issue of multilingualism as it pertains to the courtroom, resulting in diverging practices and, at times, insufficient protection of individual liberties. For example, in some courts, a defendant is entitled to have his indictment translated, while other courts have held that an accused has no right to an interpreter outside of criminal proceedings.6

Furthermore, a defendant must request an interpreter. If he fails to make such a motion, the defendant’s right to an interpreter is considered waived.7 In the alternative, some courts have held that where a judge has been put on notice of a defendant’s language difficulties, the judge is required to inform the accused of his right to an interpreter.8 A judge’s failure to do so is not a reversible error where it is determined that the defendant did not actually need an interpreter.9 Notably, the determination of whether a defendant has the requisite proficiency to understand or communicate in the proceedings is at the discretion of the presiding judge.10

The Sixth Amendment guarantees a defendant’s right to know the nature and cause of the crime of which he is accused, be present at his criminal proceedings, and confront his accusers.11 Should a judge underestimate a defendant’s understanding of the English language, the accused is denied these rights. Surely, a defendant who does not understand the proceedings before him cannot be said to be “present” at the proceedings. In the same way that the mentally incompetent are not able to stand trial because they cannot understand the events of the proceeding,12 a person who is unable to communicate in the language in which the trial is conducted faces a deprivation of the fundamental fairness that due process requires. In light of such grave consequences to a defendant who misunderstands or is misunderstood, it seems unwise to give the presiding judge such breadth of discretion.

Certainly, requiring interpreters does have administrative hurdles. For instance, some jurisdictions may not have a sufficient pool of certified interpreters in necessary languages. Other jurisdictions may not have the financial resources to compensate certified interpreters.13 Even where certified interpreters are not required, locating an otherwise qualified interpreter may be challenging. However, these administrative difficulties do not outweigh the potential rights violation of a defendant who is miscategorized as English proficient. This is particularly true where the incentive to lie about English proficiency is so minimal. There is some suggestion that defendants will misrepresent themselves as lacking English-language proficiency to give themselves more time to respond during cross-examination (the theory being that they have until the interpreter finishes translating before they have to respond).14 However, when weighing the benefits of a few extra seconds to respond against the consequences of lying to the court about a language barrier and the potential for jury bias against non-English speakers,15 this argument fails all logical reasoning.

Not only are the risks of deferring to a defendant who requests an interpreter minimal and the consequences of a judge making an incorrect assessment high, but given the unique language used in the law, the chances of a magistrate correctly measuring an accused’s language skills are meager. For instance, an individual who has lived and worked in the United States for a decade might not have ever encountered the term “larceny,” or “probative,” or “preponderance,” or any myriad of terms that litter a judicial proceeding. Our current system places the burden on the defendant who may only understand every few words or be unable to dissect the complicated syntax of a criminal indictment to request, and then prove that he has a sincere need for interpretative assistance. The presiding judge, who may not understand what it means to face criminal prosecution in a language that is not her native tongue, is then granted great deference to assess the authenticity of the defendant’s request. Where the costs to the criminal justice system are negligible and the risks to fundamental fairness and accuracy are great, the courts are obligated to respond. The Court’s first step in correcting this wrong is to alter the burden of proof. Deference should be given to the defendant making a motion for an interpreter, allowing a judge to deny that request only where it is plainly obvious that such an interpreter would be unnecessary.

Undoubtedly, the battle for English learners will not end with this seemingly minor change, but fundamental fairness demands that every “sonofabitch”—with or without a green card—is granted equal protection under the law.