Court Access

In criminal cases Federal and State courts have found that while “there is no specific State or Federal Constitutional provision governing the right to have interpretive services furnished in a court...legislative bodies have long recognized the need for such services to ensure meaningful participation." United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir.1970). (Word)

Federal Requirements                                                                  

When a defendant lacks the ability to speak or understand English, an interpreter can be essential for ensuring a fair trial. A defendant “deserve[s] more than to sit in total incomprehension as the trial proceed[s]. Particularly inappropriate in this nation where many languages are spoken is a callousness to the crippling language handicap of a newcomer to its shores ....” United States ex rel. Negron at 390.

The federal Judiciary and Judicial Procedure Act, 28 USC §§ 1827, 1828 allows for the assignment of interpreters in Federal trials and proceedings.

New York State Requirements                                                    

New York Uniform Rule 217

In October 2007, the New York Uniform Rules for state courts were amended to require criminal and civil trial courts to provide interpreter services for individuals with limited English proficiency.

These amendments describe the obligation of all trial courts in New York to appoint interpreters when a party or guardian or a minor in a Family Court proceeding is limited English proficient (LEP) and an interpreter is needed to ensure their meaningful participation in the court proceeding.

An LEP individual may waive the court appointed interpreter if they provide their own interpreter. Interpreting services are also to be provided to LEP individuals at the court clerk offices. The complete text is available here (PDF) and in the State Court Resources below.

Interpreter Benchcard for Judges

The requirement that interpreters are provided to LEP individuals in all civil and criminal cases was also explained in the Interpreter Benchcard for Judges included in the 2008 edition of the New York State Unified Court System’s Court Interpreter’s Manual and Code of Ethics available here (PDF).

New York Judiciary Law

In New York, Judiciary Law § 386 provides for the appointment and compensation of court interpreters. Judiciary law § 387 allows for the temporary appointment if any interpreter required in any State court.

A court should take affirmative steps to determine the need of an interpreter only “when it becomes acutely obvious that the defendant is exhibiting an inability to understand the trial proceedings or to communicate with his counsel due to a language barrier." Yellen v. Baez, 177 Misc.2d 332, 336 (Richmond. Cty, S.Ct. 1997)

New York state civil courts have recognized that requiring an individual to proceed, when it is obvious that an interpreter is needed, would violation due process of law as interpreters are necessary to ensure meaningful participation. Since “language is the principal basis of communication in a trial or hearing, a litigant's ability to understand and communicate that language is critical to the proceeding's fairness." Lizotte v. Johnson, 4 Misc.3d 334,342, citing Goldberg v. Kelly, 397 U.S. 254, 268-9 (1970).

Federal Resources                                                                            

• Letter to Indiana Courts by Coordination and Review Section, Civil Rights Division, US Department of Justice, February 4, 2009

• Memorandum of Understanding between the Coordination and Review Section, Civil Rights Division, US Department of Justice and the State of Maine Judicial Branch, September 23, 2008 (PDF)

• DOJ Guidance Letter to State Court Administrators, 2003 (PDF)

• LEP Guide for Courts, National Center for State Courts

State Court Resources                                                                    

• Language Access in State Courts, Laura Abel, Brennan Center for Justice, July 2009, Full Report (PDF)

• New York State Unified Court System’s Court Interpreter’s Manual and Code of Ethics, December 2008 (PDF)

• New York Unified Court System Interpreter Benchcard for Judges, December 2008 (PDF)

• New York Unified Court System Interpreter Policy, 2006 (PDF)

• Memo on New York State Courts (Word)

• New York Court Rule 217 Amendments (PDF)

• Improvements in New York Court Interpreting, Summer 2006

• New York State Office of Court Administration, We Speak Your Language Cards (PDF) English Spanish

• Working with Foreign Language Interpreters in the Courtroom, A Bench Card for Judges, The Supreme Court of Ohio, 2007 (PDF)

• State Statutes Requiring the Provision of Foreign Language Interpreters to Parties in Civil Proceedings, American Bar Association, Commission on Domestic Violence, June 2007 (PDF)

• White Paper, Court Interpreters: Fundamental to Access to Justice, Conference of State Court Administrators (COSCA), November 2007 (Word) PDF Version

Last Updated: September 24, 2009 ● Empire Justice Center © 2009