“Each agency shall examine the services it provides and develop and implement a system by which LEP persons can meaningfully access services.”
— Executive Order 13166
“A court shall appoint a foreign language interpreter [if] the court concludes the party or witness is limited English proficient or non-English speaking and determines the services of the interpreter are necessary for the meaningful participation of the party or witness.”
— Rule 88
Ohio Rules of Superintendence
About 15 years ago, when employed as an assistant county prosecutor, I prosecuted a case in which the defendant was charged with kidnapping and sexual assault. The crime happened in southern Delaware County and the defendant was from western Africa.
He had allegedly offered a ride to a woman, taken her back to the apartment he shared with his brother, and then sexually assaulted her. Neither he nor his brother spoke very much English.
Not surprisingly, his brother was called as a witness for the state. The brother’s testimony confirmed the victim’s story that she was present in the apartment and that she was alone in the defendant’s room with him.
In order to question the defendant’s brother and in order for the defendant to speak with his attorney, an interpreter was necessary. But in 2000, before the advent of standards and rules for the use of interpreters and before organized training for Ohio interpreters, only one interpreter was used in the trial.
That meant that when the defendant’s brother took the stand, the interpreter went up to the witness box and translated the questions and answers to and from the brother. Under the rules currently in place today, that would not have been sufficient and could have served as the basis for an appeal.
That’s because the entire time the defendant’s brother was testifying, there was no way for the defendant to speak with his attorney, communicate concerns or potential questions to his attorney, or counter any information that his brother was giving. Under today’s standards, two interpreters would have been necessary — one for the defendant and one for his brother.
The process of establishing rules, guidelines and training for interpreters grew out of an executive order issued in August 2000 by President Clinton. That order required that all federal agencies, and state agencies that accept federal funds, expand access to people who had limited English proficiency. It further established a policy that failure to do so was a violation of Title VI of the Civil Rights Act of 1964.
In response to action by the Department of Justice against several other states, the Supreme Court of Ohio formed the Advisory Committee on Interpreter Services (now called “Language Services”) and an internal office to manage the language services program. The Advisory Committee drafted proposed rules on the training and certification of interpreters, a code of ethics for those interpreters to follow and proposed standards for courts to follow when using an interpreter. A quick reference “bench card” and more thorough handbook were also created for judges.
The Ohio Supreme Court has made significant resources available to Ohio’s trial courts. In addition to training and certifying interpreters, the court also established a telephonic interpretation service and paid to provide translations of dozens of commonly used court documents. All Ohio courts are now expected to follow state and federal law and ensure that everyone who participates in a court proceeding in Ohio, whether criminal or civil, can participate fully.
The reasoning behind such a policy is clear. Just as you or I would expect to be able to participate and understand a proceeding if we were wrongfully accused of a crime while on vacation in a foreign land, so too should all litigants in our courts have the opportunity to meaningfully take part in court cases that seriously affect their lives, their freedom or their well-being.
The use of interpreters in a criminal trial has been in the local news this week. Because of the standards established by the Ohio Supreme Court, everyone involved in that trial can be sure that the outcome will be determined by the evidence and not by an artificial language barrier.
David Hejmanowski is the judge of the Probate/Juvenile Division of Delaware County Common Pleas Court.