California attorneys must show prejudice resulting from the use of an uncertified interpreter, or else it’s harmless error.
Court-certified interpreters play an important role in the administration of justice. As different from the many states, such as Colorado, South Dakota, Utah, Louisiana, Tennessee, Wisconsin, where the state courts pays for court interpreters in all legal proceedings, including civil matters and criminal cases, California courts provide free interpreters for criminal cases, traffic court, juvenile cases, and domestic violence cases. In addition, some California courts may pay for court interpreters in civil cases dealing with evictions, family law (such as child support and child custody and visitation), civil harassment, guardianships, conservatorships, and others. A recent unpublished opinion from the California Court of Appeals demonstrates the importance of fighting for your non-English-speaking client’s right to a certified court interpreter during trial.
In King v. Lee, (Cal. App. 2021), the court ruled that even though the trial court erred in swearing in a non-certified Korean interpreter for use during the trial, the decision was harmless error because defense counsel failed to object and demonstrate prejudice to his client.
The facts giving rise to the case of Kim v. Lee
Kim v. Lee is a case about fraud, negligent misrepresentation and breach of contract arising from a real estate development project.
Lee purchased a property at a foreclosure auction, but the property was not compliant with the current health code. His agent managed the property and hired Kim’s company, GNE, to resolve health and safety code violations.
GNE completed the work, and the health department inspected the home after the remediation. The health inspector told GNE it was still not up to code. Kim claims that he was never informed that the building was still not compliant with the city’s code.
As a result, Kim then purchased the property from Lee, “as is,” believing that it was compliant. After the sale went through, Kim learned that it was not compliant, and suffered financial losses.
Korean interpreter required during trial but only uncertified interpreter is available
Kim speaks Korean and required a Korean interpreter during the trial. The day before trial, Kim’s lawyer notified the court that despite his best efforts to find someone, only a noncertified interpreter was available to interpret.
The judge agreed to swear in the noncertified interpreter as long as defense counsel had no objection. Defense counsel did not object to the uncertified interpreter on the condition that “he had a resume that was appropriate.”
Defense counsel questioned the interpreter about his resume and qualifications. He also had the interpreter speak with his own certified Korean interpreter to gauge his knowledge of the Korean and English languages. After this, defense counsel ultimately told the judge “I think we are fine,” and the interpreter was sworn in.
The uncertified interpreter was used at various points throughout the trial without objection from defense counsel. During cross examination of Kim, defense counsel used their own certified Korean interpreter.
In the middle of Kim’s testimony, approximately seven days after the trial started, the defendant raised certain issues with the court about the Korean to English interpretation thus far. By this point, the non-certified Korean interpreter had been used throughout the trial on several occasions, including during Kim’s earlier testimony.
When raising his concerns with the court, the defense attorney pointed out certain omissions, additions, and inaccuracies in the transcript that was based on the uncertified Korean interpreter’s interpretation.
The judge determined that the inaccuracies were relatively minor and he gave the defendant the option of using their own court-certified Korean interpreter from that point on.
All parties continued the trial with the use of both the uncertified and certified Korean court interpreters.
“Improper procedures regarding an interpreter do not raise a constitutional violation unless the defendant can prove prejudice and a denial of a right to a fair trial.” – Kim v. Lee
California code says that court interpreters are required to be certified and sworn in under oath. However, a trial court can use an uncertified interpreter for good cause. Good cause may include the inability to find a certified interpreter after an honest attempt, but not always.
In this case, the Court of Appeals concluded it was wrong for the trial court to swear in an uncertified interpreter, but it also recognized that the defendant agreed to the swearing in and didn’t raise concerns in a timely manner.
Instead, the defense attorney waited until after the Korean court interpreter had already worked several days of the trial. It was only at that point that he raised concerns about the transcript with the court.
The court also noted that the defendant had access to their own certified Korean court interpreter who was allowed to interpret during the cross examination of Kim, listen to the testimony in real time and check the interpretation for accuracy.
Though the defendant pointed out verifiable errors in the transcript, the court resolved many of the errors through agreement. Furthermore, the defense attorney failed to demonstrate any prejudice from the errors such that it would have affected the outcome of the trial.
Defense attorney’s failure to demonstrate prejudice means the use of an uncertified interpreter was harmless error.
Since the defendant didn’t show prejudice from the Korean to English interpretation by the uncertified Korean court interpreter, the court determined the use of the interpreter was harmless error.
It was wrong for the court to appoint a noncertified interpreter, but the appellate court wasn’t convinced that would have changed the outcome of the whole case. Furthermore, defense counsel’s failure to object and assert his client’s due process rights in a timely manner ultimately hurt his arguments on appeal.
Always demand a certified court interpreter
Attorneys in California should always demand that certified interpreters are used during trial. If they don’t, they’ll face an unforgiving harmless error standard that is difficult to meet on appeal.
If uncertified interpreters are used during trial, opposing counsel should hire an independent court-certified interpreter. This court certified interpreter can listen to and check the accuracy of the interpretation in real time, so the attorney would request that any errors in the transcript are immediately corrected.
Get in touch with All Language Alliance, Inc. to secure services of court-certified interpreters for on-site, in-person, and virtual video depositions and trials in Korean, Spanish, Russian, Mandarin, Italian, Mongolian, Romanian, Amharic, French, Vietnamese, Portuguese, Malay, and other foreign languages.
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