Delaware Trial Handbook § 12:9. USE OF AN INTERPRETER
When necessary because of language or speech difficulties, a court may appoint an interpreter of its own selection to translate trial testimony and may fix reasonable compensation.77 Interpreters for the hearing-impaired may be required under the federal Americans with Disabilities Act.77.1 Beyond statutory rights, there is no constitutional right to an interpreter in civil cases.77.2 The decision to use an interpreter as well as the appropriate qualifications of an interpreter are matters within the discretion of the trial court.78 In civil actions, the compensation of the interpreter may be assessed against one of the parties.79 In criminal cases, compensation is paid out of funds provided by law or by the State, as the court directs.8°
It is not an abuse of discretion for a trial court to deny a request for an interpreter if the trial court takes the necessary steps to insure that a criminal defendant completely understands the proceedings against him or her.81 Where a trial court is put on notice that an indigent criminal defendant may have obvious and significant difficulty with the language, that defendant has the right to a court-appointed interpreter. If an interpreter was not requested and the record indicates that the defendant did not have trouble communicating, a court’s failure to appoint an interpreter will not be considered erroneous.82
The fact that, due to linguistic and semantic differences in the two languages, the interpreter cannot provide a word-for-word translation will not render the interpretation invalid or be deemed prejudicial to a party, provided that the translator conveys the substance and meaning of the testimony of the witness. The substantive rights of a party will not be deemed to have been prejudiced absent a showing that the translation is subject to “grave doubts.”83
Any interpreter should be unbiased and impartial. Because of the inherent risk of bias and a violation of due process rights, an interpreter may not have an affiliation with the opposing party.84 An interpreter is subject to the provision of the rules of evidence relating to qualification as an expert and the administration of an oath or affirmation that the interpreter will make a true translation.85
The Delaware Supreme Court has recommended the following instructions to jurors in cases where an interpreter is used:
Proceedings Interpretation: This court seeks a fair trial for all regardless of the language they speak and regardless of how well they may or may not use the English language. Bias against or for persons who have little or no proficiency in English because they do not use English is not allowed. Therefore do not allow the fact that the party requires an interpreter to influence you in any way.
Witness Interpretation: Treat the interpretation of the witness’s testimony as if the witness had spoken English and no interpreter were present. Do not allow the fact that testimony is given in a language other than English affect your view of the witness’s credibility.85.1
77. Super. Ct. Civ. R. 43(e); Super. Ct, Cr. R. 28; Comm. Pls. Ct. Civ. R. 43(e); Comm. Pls. Ct. Cr. R. 28(b); Fam. Ct. Civ. R. 43(f); Fam. Ct. Cr. R. 28(b); J.P. Ct. Cr. R. 18; Ald. & M. Ct. R.17.
77.1. See 28 C.F.R. §35.160; J.P. Ct. Policy Directive 94-145 (May 26, 1994).
77.2. E.D. v. T.S., C.A. CN96-07569, Waserstein, J. (Del. Fam. Ct. Mar. 19, 2003).
78. Liu v. State, 628 A.2d 1376, 1384 (Del. 1993); Gonzales v. State, 372 A.2d 191, 192 (Del. 1977); Green v. State, 260 A.2d 706, 707 (Del. 1969); Santiago v. State, No. 161, 1988, slip op. at 2, Moore. J. (Del. Aug. 12, 1988) (ORDER), disposition reported at 547 A.2d 634 (Del. 1988) (TABLE); Garcia v. State, No. 304, 1985, slip op. at 3, Walsh, J. (Del. June 19, 1986) (ORDER), disposition reported at 511 A.2d 1 (Del. 1986) (TABLE).
79. Super Ct. Civ. R. 43(e); Comm. Pls. Ct. Civ. R. 43(e); Fam. Ct. Civ. R. 43(e).
80. Super Ct. Cr. R. 28; Comm. Pls. Ct. Cr. R. 28(b); Fam. Ct. Cr. R. 28(b); J.P. Ct. Cr. R. 18.
81. Spruance v. State, No. 56, 1993, slip op. at 3, Moore, J. (Del. Mar. 25, 1994) (ORDER), disposition reported at 640 A.2d 655 (Del. 1994) (TABLE); Santiago v. State, No. 161, 1988, slip op. at 3, Moore. J. (Del. Aug. 12, 1988) (ORDER), disposition reported at 547 A.2d 634 (Del. 1988) (TABLE).
82. Chao v. State, 604 A.2d 1351, 1362 (Del. 1992).
83. Chao v. State, 604 A.2d 1351, 1385 (Del. 1992); Spruance v. State, No. 56, 1993, slip op. at 5, Moore, J. (Del. Mar. 25, 1994) (ORDER), disposition reported at 640 A.2d 655 (Del. 1994) (TABLE).
84. Gonzales v. State, 372 A.2d 191, 192-93 (Del. 1977) (error for arresting officer to act as interpreter for criminal defendant).
85. D.R.E. 604. See also Green v. State, 260 A.2d 706, 708 (Del. 1969); Delaware Supreme Court Administrative Directive 107(8) (Del. Apr. 4, 1996) (requiring oath “”Do you solemnly swear that you will interpret accurately, completely and impartially, using your best skill and judgment in accordance with the Code of Professional Responsibility for Court Interpreters?”).
85.1. Delaware Supreme Court Administrative Directive 107(11) (Del. Apr. 4, 1996).
© 2010 David L. Finger