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New Jersey Supreme Court Announces Presumption in Favor of In-Person Interpreter for Criminal Trials and Issues Guidelines for Use of Video Remote Interpreting

by Matt Clarke

In a case of first impression, the Supreme Court of New Jersey held that there is a presumption in favor of in-person interpreting services, rather than video remote interpreting (“VRI”), for criminal trials and promulgated guidelines for determining whether a criminal defendant should be provided in-person interpreting services or VRI.

Oscar R. Juracan-Juracan is a native speaker of Kaqchikel, an indigenous Mayan language spoken by around 450,000 people worldwide, most of whom live in central Guatemala. He was charged with four serious felonies related to an alleged sexual assault and requested a Kaqchikel interpreter. Court certified Kaqchikel interpreters are rare, so the court used an interpreter located on the West Coast who appeared via video to translate pretrial proceedings. However, that interpreter spoke only Kaqchikel and Spanish, so a second interpreter, who also appeared via video, was used to translate from Spanish into English.

At the conclusion of pretrial proceedings, the court announced the same translation procedures would be used for the upcoming jury trial. The Kaqchikel interpreter protested that this was the first time the interpreter had used such a procedure, and it is inadequate for a jury trial because it is sometimes difficult to hear what is said and “simply not the same” as in-person interpretation. Further, the proceeding had been interrupted three times when the Spanish interpreter had gotten distracted, let a colleague take over, or been disconnected. Defense counsel objected to the use of VRI in the jury trial.

The court overruled the objection, and its decision was affirmed by the Appellate Division. The Supreme Court granted a defense motion for leave to appeal.

The Court noted that the question of whether a defendant is entitled to in-person interpreting services, as opposed to remote services, pursuant to Administrative Directive 10-22 (“AD 10-22”) is a matter of first impression. Although the Court didn’t base its decision on the state and federal Constitutions, it explained that the constitutional rights to a fair trial, confrontation, counsel, and due process are implicated. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; see also Tennessee v. Lane, 541 U.S. 509 (2004).

Both federal and New Jersey courts recognize a criminal defendant’s right to an interpreter. See United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970); State v. Kounelis, 609 A.2d 1310 (N.J. Super. Ct. App. Div. 1992). Notably, the U.S. Supreme Court has never addressed the issue of whether there is a constitutional right to an interpreter, according to the Court. However, a criminal defendant has a statutory right to an interpreter in federal proceedings. See 28 U.S.C. § 1827.

The Court stated that, prior to its promulgation of AD 10-22 on September 30, 2022, amending the New Jersey Judiciary Language Access Plan (“LAP”), VRI was permitted only for “emergent matters” or “short non-emergent matters of 30 minutes or less.” AD 10-22, promulgated in response to the COVID-19 pandemic, permits VRI “for both ‘emergent and routine proceedings’ subject to judicial discretion.”

After reviewing AD 10-22 and the commitment by the “New Jersey Judiciary” to making sure that “all court users, including people with limited English proficiency, have equal access to all court proceedings,” the Court held that there is a “presumption of in-person interpreting services for criminal jury trials.”

It then announced guidelines to help trial courts in determining whether in-person interpreting or VRI should be used in exercising their discretion under the LAP, which include the following nonexclusive factors: (1) the nature, length, and complexity of the trial; (2) the number of parties and witnesses involved; (3) whether an interpreter is available to interpret in person at trial; (4) the impact any substantial delay in obtaining an in-person interpreter would have on the defendant and on third-parties such as co-defendants or victims; (5) whether the defendant tentatively plans to testify; (6) the financial costs associated with in-person interpreting as compared to remote interpreting; and (7) the interpreters’ position as to whether they believe they can adequately fulfill their duties to interpret accurately and meet professional standards while interpreting virtually.” The Court instructed that “no single factor is determinative and all factors should be considered.”

The Court also provided the following additional guidance. “In the rare cases in which VRI is used for a criminal jury trial, guardrails should be put in place to ensure a fair trial for defendants” such as scheduled breaks for the interpreter to rest as well as for the defendant to consult with counsel. Additionally, the decision to use VRI should be approved by the Assignment Judge or Presiding Judge, the Court instructed. When costs are an issue, the Administrative Office of the Courts should be consulted for additional guidance.

Turning to the present case, the Court stated that because it just announced the foregoing guidance, the case must be remanded to the trial court for reconsideration of whether VRI is appropriate under the newly issued guidance.

Accordingly, the Court reversed the Appellate Division’s judgment and remanded to the trial court. See: State v. Juracan-Juracan, 2023 N.J. LEXIS 848 (2023).  

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