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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
-- Interpreter provided for person with hearing, speech or other impediment.
Evidence Rule 604 -- Interpreters: "An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation."
Columbus v. Lopez-Antonio
, 153 Ohio Misc. 2d 4,
– Defense counsel refused to stipulate the qualifications of a translator. Due process guarantees limited-English proficient defendants the same opportunity as others to speak in their defense and to understand what is taking place. This includes plea hearings. Opinion quotes a pattern voir dire on qualifications from a judicial handbook and cites a code of professional conduct for interpreters and translators. Interpreter found unqualified, notwithstanding more than two years of employment by the court as an interpreter. Among other defects, he did not have a mastery of legal vocabulary in either English or Spanish.
State v. Jama
, 189 Ohio App. 3d 687,
– Nephew interpreted for Somali defendant at the sentencing hearing. While there were occasions when the interpreter seemed off track the defendant did not object. Approached as plain error, the court does not reverse. Case was remanded on a different basis so there will be another sentencing hearing.
State v. Newcomb
, Franklin App. Nos. 03AP-404, 961 -- An interpreter must be sworn and must qualify as an expert pursuant to Evidence Rule 702. The administration of an oath should appear in the transcript in addition to any written oath. The transcript should reflect the interaction between the interpreter and the defendant. Trial counsel failed to object. Court of appeals does not find plain error from its evaluation the exchange at the time a guilty plea was taken.
State v. Ramirez
(1999), 135 Ohio App. 3d 89 -- Murder suspect spoke only Spanish. Miranda warnings were given through the use of a translator, who had seven quarters of college Spanish and had lived in Mexico for six months. She worked from an English language advice card and made syntax errors demonstrated by a defense language expert. The warnings were also incomplete, and there was no advise of the right to have the Mexican Consul present during questioning. Suppression required.
State v. Ramirez-Garcia
(2001), 141 Ohio App. 3d 185 -- Translator was born in Nicaragua, taught conversational Spanish at Miami University, and provided a sufficient translation of Miranda rights. Defendant had already indicated in English he understood at least some of his rights. Suppression not required. Probably didn't help that on the way to the station the defendant told officers, in English, that he had to kill the victim and offered to show them the gun.
State v. Frunza
, Cuyahoga App. No. CR-425843,
-- Defense counsel waived presence of translator during voir dire. Since the defendant's command of English may have been sufficient that an interpreter was not constitutionally required, court does not find plain error or ineffective assistance of counsel.
State v. Razo
, 157 Ohio App. 3d 578,
-- Instead of appointing an interpreter, the court appointed a second attorney fluent in the defendant's language. Defendant waived error by not asking the attorney be sworn as an interpreter. ¶11: "It would indeed be a foolish result for a trial court to find that a qualified attorney, expert in a foreign tongue, would not guarantee due process better than an interpreter ignorant of the law." See concurring opinion for alternative analysis of the importance of assuring the defendant hear the proceedings in a language he understands.
State v. Gegia
, 156 Ohio App. 3d 112,
, ¶14 -- "Because appellant was given an opportunity to have an interpreter present and he refused, he cannot now argue on appeal that the absence of an interpreter somehow caused him prejudice." Record indicated the defendant adequately understood what was said during the plea hearing.
State v. Alvarez
, 154 Ohio App. 3d 526,
-- An interpreter must directly translate the defendant's responses during a plea colloquy. Intervening conversations between the defendant and the interpreter don't necessarily have to be memorialized. A postconviction action may be the avenue to relief for asserting the interpreter failed to do his or her job properly.
In re Lopez
, 166 Ohio App. 3d 688,
, ¶52-57 -- On appeal from termination of parental rights, father claimed child welfare agency violated his due process rights by not making an adequate effort to reunite him with his child. Affirmed. While he was not provided with case planning documents in Spanish, and for a time the agency relied on the mother to translate for him, he was represented by Spanish speaking counsel and the interpreters appeared qualified.
State v. Negash
, 170 Ohio App. 3d 86,
-- In a Catch-22 situation, the court is unwilling to find an abuse of discretion in the denial of a mistrial motion premised on poor performance by an interpreter because it can not measure the materiality of the errors made.
State v. Schaim
(1992), 65 Ohio St. 3d 51 -- When a defendant makes a credible claim that he is hearing impaired, the court must conduct an evidentiary hearing addressed to the need for assistance and the best means to accomplish that goal.
State v. Stanley
(1997), 121 Ohio App. 3d 673, 694-699 -- Though defendant was dumb with limited signing ability, a juvenile, and of low intelligence, there was no abuse of discretion in refusal to have competency evaluations videotaped. Video of Miranda advice showed officer had average to poor skill using "pidgin" signing and made several mistakes. Court still finds proper waiver.
State v. Pina
(1975), 49 Ohio App. 2d 394 -- Where a defendant does not speak English and relies upon an interpreter, the court must address the defendant through the interpreter and the interpreter must relate the response of the defendant. The court may not rely upon representations by the interpreter as to what the defendant does or does not understand. Also see
State v. Fonseca
(1997), 124 Ohio App. 3d 231.
State v. Saah
(1990), 67 Ohio App. 3d 86 -- No abuse of discretion shown in court's refusal to appoint an interpreter to assist Palestinian defendant where record demonstrates functional mastery of the English language both in the defendant's testimony at trial and in the course of his past dealings with others.
State v. Blankenship
(1991), 77 Ohio App. 3d 324, 331 -- No interpreter was provided though state's witness indicated some difficulty understanding English. On appeal defendant claimed this prevented effective cross-examination. No error since neither party brought the problem to the attention of the trial court.
State v. Rosa
(1988), 47 Ohio App. 3d 172 -- Headnotes: "(1) The requirements of
and Evid. R. 604 mandating administration of an oath to an interpreter are waived when there is a failure to object in the trial court to a failure to so administer the oath. (2) Error in failure to qualify an interpreter as an expert witness is waived when the party requesting the interpreter fails to object in the trial court to the failure to so qualify the interpreter."
State v. Rivera
(1994), 99 Ohio App. 3d 325 -- Complaints that interpreter was present for only five minutes during trial preparation and did not fully translate trial proceedings must be properly made a part of the record. Affidavit of trial counsel was not sufficient.
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
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