A. Statutory and Constitutional Rights to Simultaneous Translation
MCL 775.19a provides:
“If an accused person is about to be examined or tried and it appears to the judge that the person is incapable of adequately understanding the charge or presenting a defense to the charge because of a lack of ability to understand or speak the English language, the inability to adequately communicate by reason of being mute, or because the person suffers from a speech defect or other physical defect which impairs the person in maintaining his or her rights in the case, the judge shall appoint a qualified person to act as an interpreter. Except as provided in the [Deaf Persons’ Interpreters Act, MCL 393.501 et seq.], the interpreter shall be compensated for his or her services in the same amount and manner as is provided for interpreters in [MCL 775.19].”
Under MCL 775.19a, a trial court “has an affirmative duty to establish [a] defendant’s proficiency in English or appoint an interpreter” where there is record evidence “that [the] defendant [is] incapable of understanding English at a level necessary to effectively participate in his [or her] defense without simultaneous translation of the trial proceedings.” People v Gonzalez-Raymundo, 308 Mich App 175, 189 (2014) (citations omitted). “[W]hen presented . . . with indications that a defendant may lack sufficient comprehension of the English language, [the trial court should] either satisfy itself of the defendant’s proficiency, provide for simultaneous interpretation, or, if the defendant wishes to waive the right to an interpreter, secure the defendant’s personal, informed waiver.” Id. at 193 (citations omitted). A court’s “fail[ure] to satisfy this duty[] . . . [may] effectively prevent[] [a] defendant from being truly present at his trial and arguably interfere[] with his ability to assist in his defense, including in the cross-examination of witnesses.” Id. at 190.
Additionally, “[t]he lack of simultaneous translation [may] implicate[ a] defendant’s rights to due process of law guaranteed by the United States and Michigan Constitutions.” Gonzalez-Raymundo, 308 Mich App at 188, citing US Const, Am V; US Const, Am XIV; Const 1963, art 1, § 17. “Specifically, a defendant has a right to be present at a trial against him . . . and a defendant’s lack of understanding of the proceedings against him [or her] renders him [or her] effectively absent[.]” Gonzalez-Raymundo, 308 Mich App at 188 (citations omitted). “In addition, lack of simultaneous translation impairs a defendant’s right to confront witnesses against him [or her] and participate in his [or her] own defense.” Id. (citations omitted). Because the right to simultaneous translation “is . . . not merely statutory as codified by MCL 775.19a, but [also] constitutional, . . . [it is] subject to every reasonable presumption against its loss.” Gonzalez-Raymundo, 308 Mich App at 188.
B.Appointment of Interpreter for Deaf or Deaf-Blind Person1
1.Right to Appointment of Interpreter for Deaf or Deaf-Blind Person Under MCL 393.501 et seq.
A deaf or deaf-blind person has the right to a qualified interpreter and to meaningful participation in judicial or investigative proceedings. People v Brannon, 194 Mich App 121, 127 (1992); Bednarski v Bednarksi, 141 Mich App 15, 19 (1985); MCL 393.503(3); MCL 393.504(1).
“An appointing authority, when it knows a deaf or deaf-blind person is or will be coming before it, shall inform the deaf or deaf-blind person of the right to a qualified interpreter.” MCL 393.504(2). See also Bednarski, 141 Mich App at 20 (“an appointing authority . . . who knows a deaf person will be coming before it is obliged to inform the deaf person of the right to an interpreter[]”).
2.Interpreters in Arrest/Custodial/Interrogation Situations
“If a deaf or deaf-blind person is arrested and taken into custody for any alleged violation of a criminal law of this state, the arresting officer and the officer’s supervisor shall procure a qualified interpreter in order to properly interrogate the deaf or deaf-blind person and to interpret the deaf or deaf-blind person’s statements.” MCL 393.505(1).
“A statement taken from a deaf or deaf-blind person before a qualified interpreter is present is not admissible in court.” MCL 393.505(2).
“An evidentiary hearing should be conducted when there is a challenge of the admissibility of a statement from a defendant who asserts he should have been provided with an interpreter under MCL 393.505.” Brannon, 194 Mich App at 128. Testimony at the hearing “should center on whether the [alleged deaf] individual lacked the necessary communication skills to make a statement without the aid of an interpreter.” Id.
“[A] reviewing court must engage in a two-step analysis when determining whether a defendant’s statement is admissible when he [or she] claims he [or she] has a hearing deficiency.” Brannon, 194 Mich App at 129. “First, if the court finds the defendant is ‘deaf,’ as defined by [MCL 393.502(b)], then the Legislature has provided that the defendant cannot be interrogated unless he [or she] is provided with an interpreter and that any statement made by a deaf defendant unaided by an interpreter must be automatically excluded.” Brannon, 194 Mich App at 129. “Second, if the court finds the defendant is not ‘deaf,’ as provided by [MCL 393.502(b)], the court must still determine whether the hearing-impaired defendant was able to comprehend his rights and make a knowing and intelligent waiver of his rights.” Brannon, 194 Mich App at 129-130.
“Before utilizing a statement made by a hearing-impaired defendant either with or without the assistance of an interpreter, it must be established that the defendant comprehended his [or her] Miranda[2] rights and intelligently waived them before making the statement.” Brannon, 194 Mich App at 130-131. “A waiver is intelligently made when the Miranda warnings are explained to the defendant by an interpreter familiar with and competent in the defendant’s primary language.” Id. at 131. “Where a hearing-impaired defendant is subjected to polygraph examination, even greater care must be taken in explaining the rights and questions involved.” Id. (noting that “the Deaf Persons’ Interpreters Act is generally based on the same Fifth Amendment concepts associated with the waiver of rights and the voluntariness of statements[]” and holding that “the basic principles applicable to Walker[3] hearings are applicable to hearings under the Deaf Persons’ Interpreters Act[]”).
3.Determining Whether to Appoint an Interpreter for Deaf or Deaf-Blind Person
g.Appointment for Witness or Party
“In any action before a court or a grand jury where a deaf or deaf-blind person is a participant in the action, either as a plaintiff, defendant, or witness, the court shall appoint a qualified interpreter to interpret the proceedings to the deaf or deaf-blind person, to interpret the deaf or deaf-blind person’s testimony or statements, and to assist in preparation of the action with the deaf or deaf-blind person’s counsel.” MCL 393.503(1).
“In a proceeding before an appointing authority, other than a court, the appointing authority shall appoint a qualified interpreter to interpret the proceedings to the deaf or deaf-blind person and to interpret the deaf or deaf-blind person’s testimony or statements in any proceeding before the appointing authority.” MCL 393.503(2).
See also Bednarski, 141 Mich App at 20 (“[t]he Deaf Persons’ Interpreters Act . . . provides for the mandatory appointment of an interpreter in any action before a court or a grand jury where a deaf person is a participant in the action, either as a plaintiff, defendant, or witness, to perform three specific functions: (1) to interpret the proceedings to the deaf person; (2) to interpret the deaf person’s testimony or statements; and (3) to assist in preparation of the action with the deaf person[]”). In Bednarski, 141 Mich App at 20-21, the defendant was entitled to a new trial where the procedure followed at trial only satisfied the second function set out in MCL 393.503(1). See also People v Thomas, 441 Mich 879 (1992), where the defendant moved for a new trial on the basis of the court’s failure to appoint an interpreter on his behalf “under either the Deaf Persons’ Interpreters Act, MCL 393.501 et seq., MCL 775.19a[,] or constitutional principles[.]” The trial court denied the motion, “allud[ing] to the fact that neither the defendant nor the attorneys ever mentioned any need for the court to appoint an interpreter for the defendant.” Thomas, 441 Mich at 879. “However, the record include[d] statements by the court that it was aware that the defendant had a hearing problem at the time [he] waived his right to a jury trial . . . and during the trial itself[.]” Id. “The record also contain[ed] an assertion by defense counsel during trial that the defendant was 80% deaf and . . . suggest[ed] that the court appointed an interpreter for the defendant to assist in proceedings in another case that took place at about the same time as or soon after the trial of this matter.” Id. The Michigan Supreme Court remanded for “supplemental findings as to why an interpreter was not appointed on the defendant’s behalf.” Id.
h.Notification of Need for/Right to Interpreter
“Each deaf or deaf-blind person whose appearance in an action or other proceeding entitles the deaf or deaf-blind person to a qualified interpreter shall provide reasonable notice to the appointing authority of the need of a qualified interpreter before the appearance.” MCL 393.504(1).
“Each deaf or deaf-blind person who is entitled to a qualified interpreter as an accommodation under state or federal law shall provide reasonable notice to the appointing authority of the need for a qualified interpreter.” MCL 393.504(1).
i.Reasonable Proof of Deafness
“An appointing authority may require a person requesting the appointment of a qualified interpreter to furnish reasonable proof of the person’s deafness, if the appointing authority has reason to believe that the person is not deaf or deaf-blind.” MCL 393.504(3).
j.Making a Determination
“A trial court’s decision regarding whether an individual is a deaf person is based upon factual findings[.]” Brannon, 194 Mich App at 127-128.
“A qualified interpreter shall not be appointed unless the appointing authority and the deaf or deaf-blind person make a preliminary determination that the qualified interpreter is able to readily communicate with the deaf or deaf-blind person and to interpret the proceedings in which the deaf or deaf-blind person is involved.” MCL 393.503(4). “[T]he record should affirmatively disclose that the required preliminary determination was made.” Bednarski, 141 Mich App at 22.
“If a qualified interpreter states that the interpreter is unable to render a satisfactory interpretation and that an intermediary interpreter or deaf interpreter will improve the quality of the interpretation, the appointing authority shall appoint an intermediary interpreter or deaf interpreter to assist the qualified interpreter.” MCL 393.503(5).
k.Fulfilling Requests
“The appointing authority shall channel requests for qualified interpreters, intermediary interpreters, and deaf interpreters through the division.” MCL 393.508(1). “The division shall compile and update annually a listing of qualified interpreters, intermediary interpreters, and deaf interpreters and shall make this listing available to an appointing authority that may need the services of a qualified interpreter, intermediary interpreter, or deaf interpreter as required by [the Deaf Persons’ Interpreters Act, MCL 393.501 et seq.]” MCL 393.508(2).
Committee Tip:
An ADA Coordinator or contact has been designated in each court to assist with questions or requests regarding accommodations for individuals who are deaf, deaf-blind, or hard of hearing.
4.Waiver of Right to Interpreter
“The right of a deaf or deaf-blind person to a qualified interpreter shall not be waived except by a request for waiver in writing by the deaf or deaf-blind person.” MCL 393.503(3).
“A written waiver of a plaintiff or defendant is subject to the approval of the deaf or deaf-blind person’s counsel and the approval of the appointing authority.” MCL 393.503(3). See also Bednarski, 141 Mich App at 20 (“[a]ny waiver of the right to an interpreter must be in writing by the deaf person).
5.Classifications of Interpreters for Deaf Person4
“If an interpreter is required as an accommodation for a deaf or deaf-blind person under state or federal law, the interpreter shall be a qualified interpreter.” MCL 393.503a.
a.Qualified Interpreter
A qualified interpreter is “a person who is certified through the national registry of interpreters for the deaf or certified through the state by the division.” MCL 393.502(f).
b.Qualified Oral Interpreter
A qualified oral interpreter is “a qualified interpreter who is able to convey information through facial and lip movement.” MCL 393.502(g).
c.Qualified Sign Language Interpreter
A qualified sign language interpreter is “a qualified interpreter who uses sign language to convey information.” MCL 393.502(h).
d.Intermediary Interpreter/Deaf Interpreter
An intermediary interpreter or deaf interpreter is “any person, including any deaf or deaf-blind person, who is able to assist in providing an accurate interpretation between spoken English and sign language or between variants of sign language by acting as an intermediary between a deaf or deaf-blind person and a qualified interpreter.” MCL 393.502(e).
6.Appointing More Than One Interpreter
In a situation where both parties and several additional witnesses were deaf, the Court of Appeals stated its opinion that “the provisions of [the Deaf Persons’ Interpreters Act] require the appointment of an interpreter for each plaintiff and defendant, and a third interpreter for the court, if necessary.” Bednarski, 141 Mich App at 21.
7.Interpreter Oath or Affirmation
“Before a qualified interpreter participates in any action or other proceeding because of an appointment under [the Deaf Persons’ Interpreters Act, MCL 393.501 et seq.], the qualified interpreter shall make an oath or affirmation that the qualified interpreter will make a true interpretation in an understandable manner to the deaf or deaf-blind person for whom the qualified interpreter is appointed and that the qualified interpreter will interpret the statements of the deaf or deaf-blind person in the English language to the best of the interpreter’s skill.” MCL 393.506(1).
The Court of Appeals noted that MCL 393.506(1) may have been violated where “[p]rior to trial, counsel stipulated that the interpreter would ‘paraphrase’ the answers of the witnesses to ‘expedite’ the proceeding.” Bednarski, 141 Mich App at 22. The Court recognized that “[d]ue to the conceptual nature of sign language, a verbatim translation of oral testimony (or vice versa) may not be possible[;] [h]owever, the very fact of the unavoidable translation difficulty renders the need for accurate and skillful interpretation even more critical.” Id.
“The appointing authority shall provide recess periods as necessary for the qualified interpreter when the qualified interpreter so indicates.” MCL 393.506(1).
“The information that the qualified interpreter, intermediary interpreter, or deaf interpreter gathers from the deaf or deaf-blind person pertaining to any action or other pending proceeding shall at all times remain confidential and privileged, unless the deaf or deaf-blind person executes a written waiver allowing the information to be communicated to other persons and the deaf or deaf-blind person is present at the time the information is communicated.” MCL 393.506(2).
8.Interpreter Costs
“A court appointed interpreter, qualified interpreter, intermediary interpreter, or deaf interpreter shall be paid a fee by the court that it determines to be reasonable.” MCL 393.507(1).
“A qualified interpreter, intermediary interpreter, or deaf interpreter appointed by an appointing authority other than a court shall be paid a fee by the appointing authority[] . . . out of funds available to the appropriate appointing authority.” MCL 393.507(1)-(2).
“In addition, a qualified interpreter, intermediary interpreter, or deaf interpreter shall be paid for his or her actual expenses for travel, meals, and lodging.” MCL 393.507(1).
“A qualified interpreter appointed for the deaf or deaf-blind person shall be available for the duration of the deaf or deaf-blind person’s participation in the action or other proceeding.” MCL 393.507(3).
C.Appointment of Foreign Language Interpreters5
1.Right to Appointment of Foreign Language Interpreter Under the Michigan Court Rules
To support access to justice, MCR 1.111 provides for court-appointed foreign language interpreters for limited English proficient (LEP) persons.6 MCR 1.111 “focuses on the critical legal requirement [of] meaningful access[,]” and requires a court “to provide an interpreter for a party or witness if the court determines one is needed for either the party or the witness to meaningfully participate.” ADM File No. 2012-03, 495 Mich clvii, clviii-clix (2013). See MCR 1.111(B)(1).
Limited English proficient person means “a person who does not speak English as his or her primary language, and who has a limited ability to read, write, speak, or understand English, and by reason of his or her limitations, is not able to understand and meaningfully participate in the court process.” Administrative Order No. 2013-8.
2.Determining Whether to Appoint a Foreign Language Interpreter7
“Any doubts as to eligibility for interpreter services should be resolved in favor of appointment of an interpreter.” MCR 1.111(F)(6). “At the time of determining eligibility, the court shall inform the party or witness of the penalties for making a false statement. The party has the continuing obligation to inform the court of any change in financial status and, upon request of the court, the party must submit financial information.” MCR 1.111(F)(7).
Committee Tips:
A Language Access Coordinator has been designated in each court to assist with questions or requests regarding appointment of foreign language interpreters.
Whether to appoint multiple interpreters is in the discretion of the trial court. See MCR 1.111(E)(1) and MCR 1.111(F)(3). The court rules were purposefully crafted to allow the trial courts broad discretion to consider all of the facts of any circumstance and decide for themselves. For example, in a situation in which a defendant and a victim both need an interpreter, the court should seriously consider appointing separate interpreters for each. The court should avoid any appearance that proceedings are not equitable.
a.Appointment for Witness or Party
“If a person requests a foreign language interpreter and the court determines such services are necessary for the person to meaningfully participate in the case or court proceeding, or on the court’s own determination that foreign language interpreter services are necessary for a person to meaningfully participate in the case or court proceeding, the court shall appoint a foreign language interpreter for that person if the person is a witness testifying in a civil or criminal case or court proceeding or is a party.” MCR 1.111(B)(1).
“[A] party shall receive interpretation services as necessary for the person ‘to meaningfully participate’ in any hearing, trial, etc. Fundamental to meaningful participation in preliminary examinations, plea hearings, and trial is the ability to engage in pretrial preparation with trial counsel. Therefore, . . . the broad standard set forth under MCR 1.111(B)(1) mandates interpretation services during pretrial preparations when necessary for a defendant to meaningfully participate in the case or court proceeding.” People v Hoang, 328 Mich App 45, 58 (2019).
“Notwithstanding the failure of the defendant to request an interpreter, it was [reversible] error to fail to appoint an interpreter [at trial] where the record clearly show[ed] that the defendant spoke no English whatsoever.” People v Sepulveda, 412 Mich 889 (1981).8
b.Appointment for Person Other than Witness or Party
“The court may appoint a foreign language interpreter for a person other than a party or witness who has a substantial interest in the case or court proceeding.” MCR 1.111(B)(2).
c.Determining Whether Services are Necessary for Meaningful Participation
“In order to determine whether the services of a foreign language interpreter are necessary for a person to meaningfully participate under [MCR 1.111(B)(1)], the court shall rely upon a request by an LEP individual (or a request made on behalf of an LEP individual) or prior notice in the record.” MCR 1.111(B)(3). “If no such requests have been made, the court may conduct an examination of the person on the record to determine whether such services are necessary.” Id.
“During the examination, the court may use a foreign language interpreter.” MCR 1.111(B)(3). “For purposes of this examination, the court is not required to comply with the requirements of [MCR 1.111(F)] and the foreign language interpreter may participate remotely.” MCR 1.111(B)(3).
d.Denying Request for Interpreter
“Any time a court denies a request for the appointment of a foreign language interpreter . . . , it shall do so by written order.” MCR 1.111(H)(1). “An LEP individual may immediately request review of the denial of appointment of a foreign language interpreter[.]” MCR 1.111(H)(2). “A request for review must be submitted to the court within 56 days after entry of the order.” Id.
3.Waiver of Right to Interpreter
“A person may waive the right to a foreign language interpreter established under [MCR 1.111(B)(1)] unless the court determines that the interpreter is required for the protection of the person’s rights and the integrity of the case or court proceeding.” MCR 1.111(C). “The court must find on the record that a person’s waiver of an interpreter is knowing and voluntary.” Id. “When accepting the person’s waiver, the court may use a foreign language interpreter.” Id. “For purposes of this waiver, the court is not required to comply with the requirements of [MCR 1.111(F)] and the foreign language interpreter may participate remotely.” MCR 1.111(C).
A defendant does not make “an informed waiver of his [or her] right to receive simultaneous translation during his [or her] trial[]” under MCL 775.19a where there is no indication “that [the] defendant [has] made a personal and informed decision to waive his [or her] right to an interpreter[]” and where “the trial court [does not] ask[] [the] defendant personally whether he [or she] [is] aware of his [or her] constitutional and statutory right to an interpreter[.]” Gonzalez-Raymundo, 308 Mich App at 187-189 (holding that defense counsel’s assertion that the defendant “went along with” counsel’s advice to waive his right to an interpreter “[did not] operate[] to affirmatively waive [the] defendant’s rights[]”).
4.Classifications of Foreign Language Interpreters
a.Certified Foreign Language Interpreters
“When the court appoints a foreign language interpreter under [MCR 1.111(B)(1)], the court shall appoint a certified foreign language interpreter whenever practicable.” MCR 1.111(F)(1).
b.Qualified Foreign Language Interpreters
“If a certified foreign language interpreter is not reasonably available, and after considering the gravity of the proceedings and whether the matter should be rescheduled, the court may appoint a qualified foreign language interpreter who meets the qualifications in [MCR 1.111(A)(6)].” MCR 1.111(F)(1). “The court shall make a record of its reasons for using a qualified foreign language interpreter.” Id.
“If neither a certified foreign language interpreter nor a qualified foreign language interpreter is reasonably available, and after considering the gravity of the proceeding and whether the matter should be rescheduled, the court may appoint a person whom the court determines through voir dire to be capable of conveying the intent and content of the speaker’s words sufficiently to allow the court to conduct the proceeding without prejudice to the limited English proficient person.” MCR 1.111(F)(2).
d.Court Employee As Foreign Language Interpreter
“A court employee may interpret legal proceedings as follows:
(a) The court may employ a person as an interpreter. The employee must meet the minimum requirements for [certified foreign language] interpreters established by [MCR 1.111(A)(4)]. The state court administrator may authorize the court to hire a person who does not meet the minimum requirements established by [MCR 1.111(A)(4)] for good cause including the unavailability of a certification test for the foreign language and the absence of certified interpreters for the foreign language in the geographic area in which the court sits. The court seeking authorization from the state court administrator shall provide proof of the employee’s competency to act as an interpreter and shall submit a plan for the employee to meet the minimum requirements established by [MCR 1.111(A)(4)] within a reasonable time.
(b) The court may use an employee as an interpreter if the employee meets the minimum requirements for interpreters established by [MCR 1.111] and is not otherwise disqualified.” MCR 1.111(E)(2).
5.Appointing More Than One Interpreter
In general, “[t]he court shall appoint a single interpreter for a case or court proceeding.” MCR 1.111(F)(3). However, “[t]he court may appoint more than one interpreter after consideration of[:]
• the nature and duration of the proceeding;
•the number of parties in interest and witnesses requiring an interpreter;
•the primary languages of those persons; and
•the quality of the remote technology that may be utilized when deemed necessary by the court to ensure effective communication in any case or court proceeding.” MCR 1.111(F)(3) (bullets added).
6.Avoiding Potential Conflicts of Interest
“The court should use all reasonable efforts to avoid potential conflicts of interest when appointing a person as a foreign language interpreter and shall state its reasons on the record for appointing the person if any of the following applies:
(a) The interpreter is compensated by a business owned or controlled by a party or a witness;
(b) The interpreter is a friend, a family member, or a household member of a party or witness;
(c) The interpreter is a potential witness;
(d) The interpreter is a law enforcement officer;
(e) The interpreter has a pecuniary or other interest in the outcome of the case;
(f) The appointment of the interpreter would not serve to protect a party’s rights or ensure the integrity of the proceedings;
(g) The interpreter does have, or may have, a perceived conflict of interest;
(h) The appointment of the interpreter creates an appearance of impropriety.” MCR 1.111(E)(1).
“The court may make a recording of anything said by a foreign language interpreter or a limited English proficient person while testifying or responding to a colloquy during those portions of the proceedings.” MCR 1.111(D).
8.Interpreter Oath or Affirmation
“The court shall administer an oath or affirmation to a foreign language interpreter substantially conforming to the following:
‘Do you solemnly swear or affirm that you will truly, accurately, and impartially interpret in the matter now before the court and not divulge confidential communications, so help you God?’” MCR 1.111(G).
“The court may set reasonable compensation for interpreters who are appointed by the court.” MCR 1.111(F)(4). “Court-appointed interpreter costs are to be paid out of funds provided by law or by the court.” Id. See also MCL 775.19a; MCL 775.19.
“If a party is financially able to pay for interpretation costs, the court may order the party to reimburse the court for all or a portion of interpretation costs.” MCR 1.111(F)(5). “Any time a court . . . orders reimbursement of interpretation costs, it shall do so by written order.” MCR 1.111(H)(1). “An LEP individual may immediately request review of . . . an assessment for the reimbursement of interpretation costs.” MCR 1.111(H)(2). “A request for review must be submitted to the court within 56 days after entry of the order.” Id.