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Extracts from and Links to the

 

FINAL REPORT OF THE

PENNSYLVANIA SUPREME

COURT COMMITTEE ON

RACIAL AND GENDER BIAS

IN THE JUSTICE SYSTEM

 

CHAPTER 1

 

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

 

Table of Contents

                                                                                                                                 Report Page

Committee And Subcommittee Members.................................................................................   5

   Racial And Ethnic Bias Subcommittee Workgroups...............................................................   6

       Litigants with Limited English Proficiency Workgroup........................................................   6

CHAPTER 1:  LITIGANTS WITH LIMITED ENGLISH PROFICIENCY............................ 17

Introduction........................................................................................................................ 18

Synopsis Of Findings.......................................................................................................... 20

Legal Analysis..................................................................................................................... 21

Research Methodology....................................................................................................... 25

Public Hearing Testimony.................................................................................................... 31

Other State Systems And The State Court Interpreter Certification Consortium.................... 36

General Findings................................................................................................................. 38

Recommendations............................................................................................................... 43

Endnotes............................................................................................................................ 44

     Endnotes #10-#27

 

Open Report on Litigants with Limited English Proficiency as Adobe Portable Document File

 

Open Adobe Portable Document File (right click to download) with Recommendations from full Final Report of Pennsylvania Supreme Court Committee on Racial and Gender Bias and Links to each of the 14 Chapters of the Report

 

Go to Pennsylvania Supreme Court Website for full Racial and Gender Bias Report



APPENDIX TO THE FINAL REPORT OF THE

PENNSYLVANIA SUPREME COURT COMMITTEE ON

RACIAL AND GENDER BIAS IN THE JUSTICE SYSTEM

 

VOLUME I 

 

CHAPTER 1

 

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

 

Download as Adobe Portable Document File (large file 9 megabyte)

 

Table of Contents

                                                                                                                                                Page

Languages Spoken at Home County by County Breakdown 1990 Census................................   3

Download as Adobe Portable Document File

Requests for Interpreters 1st Judicial District 2001...................................................................   8

Download as Adobe Portable Document File

Bibliography............................................................................................................................ 12

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Community Agency Survey...................................................................................................... 16

Download as Adobe Portable Document File (1.7 megabyte file)

Pennsylvania Association of Court Management Survey............................................................ 40

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Philadelphia Court Interpreter Services Study........................................................................... 43

Download (large 3 megabyte file) as Adobe Portable Document File

Philadelphia Court Interpreter Services Study:  Appendices 1-5...............................................  73

            Download (large 3.3 megabyte file) as Adobe Portable Document File

Testimony of Anna Arias..........................................................................................................102

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Transcripts of Public Hearings Before Race and Gender Bias Committee

            Links to Witness Testimony Relating to Limited English Proficiency Litigants  

 

Go to Pennsylvania Supreme Court Website for full Racial and Gender Bias Report, Appendix Volumes and Transcripts.  

Appendix Material is in Volume 1 (130 megabyte file)

Go to Friends of Farmworkers Testimony To Committee on Racial and Gender Bias in the Judicial System  December 2000 

Go to Friends of Farmworkers Limited English Proficiency Links


LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

18

CHAPTER 1

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

 

INTRODUCTION

 

Due process is a core value of the American judicial system, ensuring that

every litigant and criminal defendant receives a fair hearing that is based on

the merits of his or her case and presided over by an impartial judge. No

one should be put at a disadvantage in court by reason of race, ethnicity,

or gender. Yet due process, along with the basic fairness of the Pennsylvania

court system is jeopardized if litigants with limited English proficiency

(LEP) are unable to have access to competent interpreters and other

language assistance.1

 

The Census Bureau estimates that more than 970,000

persons over age 4 in Pennsylvania speak a language

other than English at home and that nearly 370,000…

do not speak English “very well.”

 

Every day, LEP persons appear as parties and witnesses in Pennsylvania

court proceedings or call upon the courts for help. These persons may not

be able to read or comprehend the court papers given to them. They may

not be able to engage in more than superficial conversation with court staff.

They may struggle to present their claims or defenses without a sound

understanding of the English language or, in many cases, American legal

culture. While interpreters are generally provided to LEP criminal

defendants, the interpreters are not certified by the Commonwealth and

may not be qualified to interpret court proceedings. In civil cases, LEP

parties often must either fend for themselves or rely upon unskilled and

untrained friends or relatives who are struggling to understand and explain

what is being said.

 

Increases in the number and proportion of foreign-born U.S. residents in

the past two decades suggest that ethnic, cultural, and linguistic diversity

will continue to challenge the courts. The Commonwealth now has

substantial communities of recent immigrants. Latinos are the largest group

of people with limited English proficiency. Puerto Ricans began arriving

in the 1920s, followed by people from Mexico, El Salvador, Guatemala, the

Dominican Republic, Venezuela, Colombia, and elsewhere. The Census

Bureau estimates that more than 970,000 persons over age 4 in

Pennsylvania speak a language other than English at home and that nearly

370,000 of these individuals do not speak English “very well.”2 As a

consequence, Pennsylvania courts in recent years have requested oral



LITIGANTS WITH LIMITED ENGLISH PROFICIENCY (Introduction Continued)

19

language interpretation services in more than 50 different languages and

dialects.3 Upgrading the capacity of the Pennsylvania judicial system to

provide justice for all, regardless of English language ability, should be a

priority for the Commonwealth.

 

Focus of Inquiry

 

The Pennsylvania Supreme Court Committee on Racial and Gender Bias in

the Justice System (Committee) decided early in its deliberations to focus on

several of the following issues involving LEP litigants:

 

Examining the scope of responsibility of courts and administrative

agencies to provide oral interpretation services to persons in a variety of

judicial and administrative proceedings. In addition to providing

interpretation services in formal administrative hearings and criminal

defense proceedings, the courts must consider whether to provide

interpreters to people appearing as witnesses in criminal cases; witnesses

in civil cases; parties in civil cases; and jurors. Also, interpretation

services may be required by offenders who are ordered into court

supervision or court programs.

 

Determining the necessity of adopting a system for certification of

competency in oral court interpretation.

 

Identifying practical procedures for establishing systems for certification

of competency in oral court interpretation, including interim transitional

procedures.

 

Identifying barriers to the availability of qualified oral language

interpreters and means for overcoming those barriers.

 

Determining the necessity for written translation of documents and

establishing procedures for providing accurate translations.

 

Identifying other issues to be addressed, including the impact of cultural

issues within LEP communities and other immigrant, refugee, and

migrant communities.

 

Identifying the administrative mechanisms for accomplishing these goals.

 
Specific Research Methods

 

The Committee sought data and guidance through four primary avenues

of inquiry: 1) surveys of community agencies and court administrators;

2) testimony from the six public hearings it conducted around the

Commonwealth; 3) the personal professional experiences of The Litigants

Work Group members;4 4) the experiences of other states and published

literature and studies;5 and 5) an analysis of pertinent law.

 



 

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

20

SYNOPSIS OF FINDINGS

 

As immigrant, migrant, and refugee populations grow in many

Pennsylvania counties, fair access to the judicial system remains a

significant problem for those with language and cultural differences.

Despite the obvious need for culturally sensitive oral interpretation and

written translation assistance to LEP persons, Pennsylvania has no

statewide system for providing interpreter services in court proceedings.

Further, Pennsylvania has no system for certifying the competence of

interpreters in any language, including those languages for which court

interpreter certification programs have been established in neighboring

states and the federal courts. The absence of both undermines the ability of

the Pennsylvania court system to determine facts accurately and to dispense

justice fairly.

 

Many Pennsylvania courts provide interpreters only on an ad hoc basis,

allowing untrained and incompetent interpreters to translate court

proceedings. Many individuals are pressed into service, including relatives

and friends of people in court proceedings. Their proficiency in a language

other than English, however, does not mean they have the skills and

training to work as interpreters. Pennsylvania has no system for training

judges, court officials, or attorneys in issues related to utilization of

interpreters. Only when an LEP person is a defendant in a criminal case do

the Pennsylvania courts consistently recognize an obligation or duty to

provide interpretation services. Many litigants, particularly in civil matters,

are unable to obtain language assistance. The inadequacy of the services

clearly hinders courts in their ability to adjudicate disputes justly.

Pennsylvania’s First Judicial District in Philadelphia County has taken a

lead role in addressing these problems by initiating a formal court

interpreter system. Although Philadelphia County has not yet established

certification procedures, it has developed a model that may prove helpful

elsewhere in the Commonwealth. Philadelphia’s system is described in more

detail later in this chapter.



LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

21

LEGAL ANALYSIS 6

 

When people are unable to comprehend or participate fully in court

proceedings in which they are parties, fundamental notions of justice and

fairness are called into question. Substantial legal authority exists to

support the proposition that the U.S. Constitution, and the Civil Rights Act

of 1964, 42 U.S.C. §2000d et seq., obligate the states to provide

comprehensive language services to make the court system accessible to

LEP persons. This obligation is particularly compelling when LEP

individuals are forced to participate in court proceedings.

 

The well-established rights of a criminal defendant to a fair trial may be

compromised when a court conducts proceedings in a language not well understood

by the defendant. The right to an interpreter in criminal matters

is based upon the Fifth, Sixth and Fourteenth Amendments to the U.S.

Constitution. If the state fails to provide an interpreter when one is needed,

the situation jeopardizes the broad Fifth Amendment right not to be

deprived of life or liberty without due process of law; the more specific

Sixth Amendment rights of a criminal defendant to counsel, to a speedy

trial, to be informed of the charges against him, and to confront adverse

witnesses; and the Fourteenth Amendment rights to due process and equal

protection of the law. In concluding that failure to provide an interpreter

undermines the rights of a defendant to confront witnesses and to testify

on his own behalf, for example, the First Circuit noted that “no defendant

should face the Kafkaesque specter of an incomprehensible ritual which

may terminate in punishment.” United States v. Carrion, 488 F.2d 12, 14

(1st Cir. 1973). Indeed, the Pennsylvania Supreme Court previously has

recognized the importance of interpreters. See Commonwealth v. Pana, 469

Pa. 43, 364 A.2d 895 (1976). (The conviction was reversed after the trial

judge improperly refused to permit the defendant to testify in Spanish

through an interpreter, thereby interfering with his right to testify.)

 

Language issues arise in various ways throughout the criminal process. The

right to counsel may be denied when a defendant and his or her counsel

cannot communicate clearly and lack an interpreter to bridge language

differences. The difficulty may begin at the time that counsel is appointed or

retained, and may continue throughout the pretrial, trial, and post-trial

process. When a written translation of the charging documents has not been

made, the defendant may not be adequately informed of the charges against

him and may thus be unable to participate in his own defense. United States



LITIGANTS WITH LIMITED ENGLISH PROFICIENCY  (Legal Analysis Continued)

22

v. Mosquera, 816 F.Supp. 168 (E.D.N.Y. 1993). Also, a defendant who is

not provided with simultaneous interpretation of witness testimony during

trial may lose the right to cross-examine the witness effectively. Whenever

language services are needed, the failure to provide interpretation or

translation by individuals with sufficient language skills and training may

create an issue as to whether the right has been adequately protected.

The Federal Court Interpreters Act, 28 U.S.C. §1827, mandates for all

federal criminal proceedings the use of certified or otherwise qualified

interpreters for people who primarily speak a language other than English.

Many states have enacted similar statutes, rules, or state constitutional

amendments mandating the appointment of court interpreters for LEP

defendants in criminal cases.

 

Constitutional principles can also apply to civil and administrative

proceedings, although precedent in these areas is less firmly established

than in criminal cases. Fundamental due process and equal protection

rights grounded in the Fifth and Fourteenth Amendments are implicated

when an individual is threatened with loss of property interests in court, or

is denied access to court for enforcement of legal rights on the grounds of

his or her ability to speak or write well in English. (See i.e., Gonzalez v.

Commonwealth, Unemployment Comp. Bd. of Review, 39 Pa. Cmwlth. 70,

395 A.2d 292 (1978).) (The dissent found that failure to provide

simultaneous interpretation of adverse witness testimony during an

administrative hearing deprived claimant of equal protection and due

process.) Non-criminal proceedings can adjudicate critical legal matters

such as protection from abuse, child custody, support, and divorce;

dependency, termination of parental rights, and adoption; eviction and

housing or health code enforcement; mortgage foreclosure; and eligibility

for unemployment compensation, worker’s compensation, mortgage

assistance, and welfare benefits. Claims for damages represent potential

gain or loss of money, property, and assets. Concerns should be heightened

when an LEP defendant is involuntarily summoned to court and may suffer

loss of significant property or other interests. Fundamental fairness suggests

that when important interests are at stake, the court should level the

playing field, at least to the extent of permitting both sides to understand

and participate in proceedings without regard to English language ability.

 



LITIGANTS WITH LIMITED ENGLISH PROFICIENCY (Legal Analysis Continued)

23

In 1997, the American Bar Association also adopted

a resolution that “recommends that all courts be

provided with qualified language interpreters in order

that parties and witnesses…may fully and fairly

participate in court proceedings.”

—ABA Resolution, Rep. No 109 (adopted Aug. 1997)

 

Some jurisdictions have mandated the provision of interpreters for LEP

litigants in civil court proceedings. For example, interpreters are required in

federal civil proceedings in which the United States is the plaintiff,

including bankruptcy matters. 28 U.S.C. § 1827(d). A growing number of

states also mandate by statute or by court rule that interpreters be provided

in certain civil cases. Cal. Code Civ. Proc. §116.550; Ind. Code Ann.

§ 34-1-14-3 (1998); KS ST § 60-243 (2000); Mass. Ann. Laws ch. 221,

§92 (2001); Minn. Stat. §546.42 (1996); Or. Rev. Code § 45.275 (1996);

Utah Code of Judicial Administration Rule 3-306 §12(A); Va. Code Ann.

§ 8.01-384.1:1 and Wash. Rev. Code § 2.43.02 (1996). In 1997, the

American Bar Association also adopted a resolution that “recommends that

all courts be provided with qualified language interpreters in order that

parties and witnesses with no or limited command of English…may fully

and fairly participate in court proceedings.” ABA Resolution, Rep. No 109

(adopted Aug. 1997). The failure of courts and administrative agencies to

provide qualified interpreters to persons with limited English proficiency

can also violate federal civil rights laws. Section 601 of Title VI of the Civil

Rights Act of 1964, 42 U.S.C. § 2000d, states: “No person in the United

States shall on the ground of race, color or national origin, be excluded

from participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial

assistance.” Language ability has been recognized as a proxy for national

origin in discrimination cases. (See i.e., Gutierrez v. Municipal Court of

S.E. Judicial District, 838 F.2d 1031 (9th Cir. 1988), vacated as moot, 490

U.S. 1016 (1989).) Regulations implementing Title VI bar national origin

discrimination including the unintended disparate impact of seemingly

neutral policies. Lau v. Nichols, 414 U.S. 563 (1974) (Failure to provide

special language instruction to Chinese students violates Title VI

regulations.)



LITIGANTS WITH LIMITED ENGLISH PROFICIENCY  (Legal Analysis Continued)

24

In 2000, all federal departments and agencies were ordered by the President

to develop policy guidances to improve access by LEP persons to federally

funded services. Executive Order 13166, 65 F.R. 50121 (Aug. 16, 2000).7

The guidances, which continue to be published by federal departments and

agencies, impose responsibility upon state recipients of federal funds to

ensure that LEP persons have meaningful access to services and benefits.

Funded entities must develop and implement comprehensive policies for the

provision of language assistance at no charge to the LEP individual.

Pennsylvania courts receive from the United States Department of Health

and Human Services (HHS) funds relating to the collection of child

support, and may also receive funds from the Department of Justice and

other federal agencies and programs. Pennsylvania courts receiving such

funds are therefore required to comply with the applicable department

guidances.8

 

Many state agencies receive federal funds subject to the requirements of

Title VI. The agencies also conduct formal hearings which result in

decisions that are reviewed by the Commonwealth Court on the record

made therein. Among those agencies are the Pennsylvania Department of

Labor and Industry, which receives extensive funding from the U.S.

Departments of Labor and HHS, including funding that is the basis of

operations of the Unemployment Insurance Compensation system, the

Employment Service and the Bureau of Disability Determination. Since

Unemployment Compensation Insurance administrative appeals are

reviewed by the Commonwealth Court on the record made before the

Unemployment Insurance Compensation Appeals Board, they too are

subject to Title VI requirements.9 Similarly, the Department of Public

Welfare receives HHS funding and is subject to Title VI requirements.

To the extent that the state courts and agencies that conduct administrative

hearings are recipients of federal funds, Title VI mandates that broad

policies be instituted to ensure that the proceedings are fully accessible to

LEP persons. Considerations regarding language-based discrimination

apply equally to questions of providing access to those who are hearing- or

vision-impaired. These requirements, however, arise under the Americans

with Disabilities Act, 42 U.S.C.§12101 et. seq., and Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. §794.

 



            *                                  *                                  *

Table of Contents (linked pages)

                                                                                                                                 Report Page

Research Methodology....................................................................................................... 25

Public Hearing Testimony.................................................................................................... 31

Other State Systems And The State Court Interpreter Certification Consortium.................... 36

 

            *                                  *                                  *



LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

38

GENERAL FINDINGS

 

After reviewing relevant testimony, research findings, and survey data,

the Committee found fundamental statewide deficiencies in the treatment

of LEP litigants. These deficiencies undermine the ability of the court

system to determine the facts accurately and to dispense justice fairly.

Key findings include:

 

Some courts are allowing cases involving LEP parties, including criminal

defendants, to proceed without interpreters.

 

Some courts routinely allow untrained, non-professional individuals,

including relatives and friends, to act as interpreters.

 

Paid court interpreters are permitted to interpret without any

demonstrated competency, especially when they are working under

contract.

 

The ability of the court system to determine facts and dispense justice is

compromised by inadequate language services.

 

The lack of standards in Pennsylvania for the use of interpreters and for

determining interpreter competency compounds the problem of providing

access to justice for LEP persons.

 

SOME COURTS ARE ALLOWING CASES INVOLVING

LEP PARTIES, INCLUDING CRIMINAL DEFENDANTS,

TO PROCEED WITHOUT INTERPRETERS.

 

Civil and criminal cases are permitted to proceed without interpreters for

parties who cannot participate because of their limited English proficiency.

Proceedings sometimes go forward even when it is apparent that the LEP

party needs or has requested an interpreter. Fifteen percent of community

agencies surveyed by the Committee reported clients being refused an

interpreter in a court proceeding. Two witnesses recounted instances in

juvenile court proceedings in which the parents were forced to rely upon

interpretation by the juvenile defendant. Another witness observed an

arraignment that was conducted without an interpreter, in which a police

officer, following uninterpreted questioning of the defendant, presented

inaccurate and prejudicial testimony to which the defendant could not

respond. Judges, noting a person’s rudimentary English skills, may

improperly fail to appoint an interpreter even though the person is unable

to understand or participate in the proceeding without an interpreter.



LITIGANTS WITH LIMITED ENGLISH PROFICIENCY (General Findings continued)

39

The court system appears to recognize the problem, but often does not

provide assistance to language minorities. All of the judicial districts

responding to the State Association of Court Management survey agreed

that the courts should provide interpreters to criminal defendants, and

about 40 percent thought interpreters should also be provided in civil cases.

The survey, however, did not determine the extent to which courts actually

provide services. In Philadelphia, for example, the courts provide

interpreters for criminal defendants and for Family Court matters, but not

for civil matters. The community agency and court administrator surveys

suggest that interpreters are generally not being provided around the state

in civil cases.

 

Translations of many essential documents, such as complaints and waiver

forms, are not available in Pennsylvania, and there are no document

translations into languages other than Spanish. Individuals who receive the

documents may rely upon family or friends for translation, or upon brief

oral summaries that may be incomplete or inaccurate.

 

SOME COURTS ROUTINELY ALLOW UNTRAINED,

NON-PROFESSIONAL INDIVIDUALS, INCLUDING

RELATIVES AND FRIENDS, TO ACT AS INTERPRETERS.

 

Several bilingual advocates who were in court to serve as

witnesses complained that judges had drafted them to

serve as interpreters, despite their apparent involvement in

the case and their lack of specialized training.

 

Since many courts do not provide professional interpreters, LEP litigants

are often forced to rely upon any readily available person as an interpreter.

Community agencies responding to the Committee survey reported that

family and friends are the most likely source of interpreters, followed by

the agencies and the courts. Such people often lack training in

interpretation for court hearings, and they may be less than fluent in one or

both languages. Several bilingual advocates who were in court to serve as

witnesses complained that judges had drafted them to serve as interpreters,

despite their apparent involvement in the case and their lack of specialized

training.



LITIGANTS WITH LIMITED ENGLISH PROFICIENCY (General Findings continued)

40

When unskilled interpreters appear in court, the LEP party is likely to

comprehend only a part of what is occurring. The interpreter may fail to

interpret some portion of the case, may fail to summarize what is being

said, or may interpret erroneously. The interpreter may give legal advice to

the litigant, answer on his or her behalf or change the meaning of what he

or she has said.

 

Judges and attorneys who are unfamiliar with the methods used for

interpreting are generally unable to identify shortcomings in, or the

accuracy of, an interpreter’s performance. Interpreting techniques are not

difficult to understand, but to most untrained people they are neither

natural nor intuitive. Untrained participants in an interpreted dialogue, like

untrained interpreters, tend to make the same errors. Untrained judges and

attorneys also do not intuitively grasp that even a fully bilingual person

cannot interpret well without special training.

 

PAID COURT INTERPRETERS ARE PERMITTED

TO INTERPRET WITHOUT ANY DEMONSTRATED

COMPETENCY, ESPECIALLY WHEN THEY ARE

WORKING UNDER CONTRACT.

 

Courts may hire staff interpreters to handle high-volume languages such

as Spanish. In Philadelphia, as mentioned above, two of the seven Spanish

staff interpreters had less than adequate scores on a screening exam, while

the others scored extremely well. The test results reflected both the strength

and weakness of Philadelphia’s screening process for staff interpreters.

Contracted interpreters are often used in court for less familiar languages

or in rural counties. Frequently, these interpreters are subcontractors

or employees of interpreting agencies. The interpreters tend to be tested

according to what one court interpreter administrator calls the

“appearance standard,” meaning the court is satisfied when an interpreter:

 

1) is available; 2) shows up on time; 3) is appropriately dressed and appears