The ATA Chronicle - November/December 2023 - 18

think those rights are being
duly protected.
Judiciary interpreters have been perpetuating
performance standards that fail to provide limitedEnglish-proficient
individuals in court with the
meaningful comprehension they are constitutionally
entitled to receive.
it's a beginning rather than a
finished product.
Now, a question I
often hear is, why is it
the interpreter's duty to
provide that understanding,
and not the lawyer's or
the judge's? I believe each
actor on the courtroom
stage has a specific role
defined by procedural and
evidentiary rules, and they
all complement each other,
including the interpreter.
Here's a breakdown:
y Judges are tasked with
administering justice,
making sure all hearings are
conducted according to the
principles of fairness, that
attorneys follow the rules
of evidence during trials,
and generally maintaining
procedural order in the
courtroom. What happens
if a judge breaches their
duty of care? Attorneys file
an appeal and the judge
gets reversed.
y Defense attorneys are
tasked with their defense
strategy, what evidence to
present, which evidence
to object to, and how best
to protect their client's
interest and provide
effective assistance of
counsel. What happens if a
defense attorney breaches
their duty of care? The
client can file an appeal for
ineffective assistance of
counsel or complain to the
bar association.
y Prosecutors are tasked
with having a solid casein-chief,
with all the
witnesses and evidence
they believe will prove
to a jury the charges
18 The ATA Chronicle | November/December 2023
against a defendant
beyond a reasonable
doubt. Prosecutors who
breach this duty either
lose their case (and the
defendant goes free), or
in some instances they
can be sanctioned for
prosecutorial misconduct.
y Interpreters are tasked
with being able to hear and
understand what everyone
says in English so they can
relay all that information
to LEP defendants in their
own language and facilitate
meaningful comprehension.
What happens if
interpreters breach their
duty of care? There is an
LEP individual at the other
end whose constitutional
rights will be nullified.
Worse yet, everyone will
see an interpreter and
The only court officer with
the duty to provide language
access is the interpreter, and
that privileged position as
the only language expert in
the courtroom should not be
forfeited to judges or defense
attorneys. I would compare
that to hiring a math tutor
for your child. You expect the
tutor to know what to do and
how to do it, not just read
from the math book, because
that's exactly what your child
doesn't understand. And you
certainly don't want that
math tutor coming to you
to ask you how you want the
tutoring to be done.
When Equal Is Not Equal
The other question I'm often
asked is, what about the
" equal footing " paradigm?
The answer to that question
comes directly from the
justices of the Supreme Court.
In a 1982 opinion, the U.S.
Supreme Court held that
the Equal Protection Clause
directs that " all persons
similarly circumstanced
shall be treated alike. " But
so too, " [t]he Constitution
does not require things
which are different in fact or
opinion to be treated in law as
though they were the same. " 27
[Emphasis mine.] So, I
suggest that any references to
" equal footing " or " similarly
situated " principles derived
from the doctrine of equal
protection under the law
have been misconstrued and
misapplied. We are not to
treat those who are different
as if they are the same. We
know that LEP defendants
are in fact different from
their English-speaking
counterparts. We know
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