The Irrevocable Rights of Individuals Who Are Deaf

JANUARY 11, 2013

To: Steve Florio (RICDHH), Heather Niedbala (RIAD), Howard Rosenblum (NAD), Steve Brown (ACLU), Michael Évora, Esq. (RICHR), and Alex Spigelman (RIDLC)

From: Dorothy Hodge MSL, CI, CT – Qualified Legal Interpreter for the Deaf

Date: January 11, 2012 (Sent by email)

Re: The Irrevocable Rights of Individuals Who are Deaf

It is well known that with the growing diversity of the United States population, Police Officers and other Law Enforcement officials (Customs Officers, Probation Officers, Parole Officers, etc.) will likely require the use of interpreters while carrying out their duties with individuals who are Limited English Proficient (LEP). The purpose of this memorandum is to address the inalienable Constitutional rights and other federal protections of individuals who are deaf in the unfortunate event that they encounter Police Officers and Law Enforcement officials whose duty it is to conduct a preliminary investigation to determine imminent, mandatory arrest, to provide a list of questions that arise when dealing with an individual who is deaf during a preliminary investigation, to convey Miranda warnings, or an Implied Consent Advisory, and to make recommendations regarding protocol for securing ‘qualified’ interpreters so that Police Officers and Law Enforcement officials can engage in mutual reciprocal communication with individuals who are deaf and LEP, and require equal access to services, programs, and activities offered by state or local government.

Whether guilty or not, all people have among others, the following natural rights provided in the Bill of Rights of the United States Constitution:

• The right to certain close and intimate human relationships and expressive association (The First Amendment);
• The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the personsor thingsto be seized (Fourth Amendment);
• The right against indiscriminate Police authority during pre-trial legal procedures, and the right to not have to make a statement against oneself (The Fifth Amendment);
• The right to be not only physically present, but also linguistically present during a Police investigation, in order to aid counsel in one’s own legal defense (derived from the penumbras of the Sixth Amendment);
• The right to be informed, in clear language, pending charges at the scene (ADA, Civil Rights Act, Fourteenth Amendment), and the right to be informed of procedures for requesting legal counsel (The Sixth Amendment);
• The right to be informed of an imminent mandatory arrest where the suspect is not able to leave Police custody, so the individual can make informed decisions (derived from the ‘Fundamental Fairness’ and ‘Equal Protection’ standards of the Fourteenth Amendment); and the right to invoke Due Process protections (Fourteenth Amendment).

When faced with language barriers of individuals who are Limited English Proficient (LEP), Police Officers and other Law Enforcement officials have a legal, ethical, and professional responsibility to provide effective communication as promulgated by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C, 794. The Supreme Court in Miranda held in part, “the government cannot use statements obtained during interrogations “unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” In order for individuals to make informed decisions, it is critical they be provided access to meaningful reciprocal communication according to federal mandates. Interactions that lack effective communication not only breach Constitutional Rights of those individuals, but also pose serious ramifications on safety, on investigations, and on the judicious administration of justice (NAJIT 2006).

American Sign Language

American Sign Language (ASL) is a highly developed language that employs approximately 5,600 signs while English employs more than 600,000 words in its lexicon. American Sign Language and English have distinct grammar and syntax, however the most emphatic differences between the two distinct languages are (1) ASL is a three-dimensional language that is received visually through the eyes and has no written form, and English is an auditory language that is received through the ears and is able to be conveyed through written text, and (2) ASL lacks a body of standardized technical terms, while English is replete with hyper-specific technical terms, a large number of which permeate the legal system (Lavigne & Vernon, 2003). Handing a paper that contains handwritten messages in English to an individual who communicates through American Sign Language (ASL) is much like handing a paper containing a message conveyed through ideographic characters of Asian languages to someone literate in the English language. Unless linguistically disadvantaged, individuals are able to understand a message rendered in their primary language, however the message conveyed in a language other than the primary language is likely incomprehensible. The court recognizes distinctions between the language of daily needs and necessities, and the language of legal abstractions, such as rights (Lavigne & Vernon, 2003).

DOJ Purview

The Department of Justice (DOJ) states, “Title II of the Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in state and local government services, programs, and employment. Law enforcement agencies are covered because they are programs of state or local governments, regardless of whether they receive federal grants or other federal funds. The ADA also protects people who are discriminated against because of their association with a person with a disability.”

The DOJ elaborates that if the legality of a conversation will be questioned in court, such as where Miranda warnings are issued, a sign language interpreter may be necessary. Police officers are often unaware of likely miscommunication in the absence of a qualified interpreter. An affirmative head-nod may not necessarily represent consent to a confession of wrongdoing, but rather may be an attempt to appear cooperative in the midst of misunderstanding. In situations where an individual with a hearing disability would be subject to police action requiring interrogation, an interpreter would be required to convey the action being taken at no cost to the individual.

The DOJ notes that the ADA affects virtually everything that officers and deputies do, for example:

• Receiving citizen complaints;
• Interrogating witnesses;
• Arresting, booking, and holding suspects;
• Operating telephone (911) emergency
• Providing emergency medical services;
• Enforcing laws; and
• Other duties.

Department of Justice regulations, 28 CFR 42.104(b)(2), require all recipients of federal financial assistance from DOJ to provide meaningful access to LEP persons. Federal financial assistance includes grants, training, use of equipment, donations of surplus property, and other assistance. Recipients of DOJ assistance include:

• Police and sheriffs’ departments;
• Departments of corrections, jails, and detention facilities, including those recipients that house detainees of the Immigration and Naturalization Service;
• Certain non-profit agencies with law enforcement, public safety, and victim assistance missions;
• Other entities with public safety and emergency service missions;
• Subrecipients, when federal funds are passed through from one recipient to a subrecipient;
• Coverage extends to a recipient’s entire program or activity, i.e., to all parts of a recipient’s operations. This is true even if only one part of the recipient receives the Federal assistance.

According to the Department of Justice, individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English can be Limited English Proficient, or ‘‘LEP,’’ entitled to language assistance with respect to a particular type of service, benefit, or encounter.

The DOJ regulations further state examples of populations likely to include LEP persons who are encountered and/or served by DOJ recipients and should be considered when planning language services include, but are not limited to:

• Persons who are in the custody of the recipient, including juveniles, detainees, wards, and inmates;
• Persons subject to or serviced by law enforcement activities, including, for example, suspects, violators, witnesses, victims, those subject to immigration-related investigations by recipient law enforcement agencies, and community members seeking to participate in crime prevention or awareness activities;
• Persons who encounter the court system; and
• Parents and family members of the above [emphasis added].

The ADA requires that the expressed choice of the individual with the disability, who is in the best position to know her or his needs, should be given primary consideration in determining which communication aid to provide (http://www.ada.gov/q%26a_law.htm).

Police officers should not make determinations to use individuals, such as family members, relatives, friends, or children to provide sign language interpreting services when called to investigate domestic violence incidents or other complaints. Reliance on family members, relatives, friends, or children who are not able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary compromises a Police investigation, and the judicious administration of justice (Department of Justice’s Code of Federal Regulation 28 C.F.R. 36.104). Using family members who are frequently scared, sensitive, stressed, and emotionally involved, could result in a breach of confidentiality, or reluctance to reveal personal information critical to the situation. Only in exigent circumstances, where the safety of an individual or public is at risk, may one rely on a family member (DOJ).

Though the DOJ states the ultimate decision is made in these situations by Law Enforcement, and the department should honor the individual’s choice unless it can demonstrate that another effective method of communication exists, it is the opinion of the author of this document that Police Officers and other Law Enforcement officials, who are not language experts, do not possess proper credentials needed to make a determination regarding the English proficiency or literacy of an individual who is deaf, and therefore should not assume that use of pen and paper is an adequate ADA accommodation.

Questions Regarding Circumstances Preceding Arrest

Police make probable cause assessments to determine whether to arrest a suspect after examining statements of the suspects, witnesses, and victims. The manner in which these interactions are handled impacts Due Process, Equal Protection, and Fundamental Fairness protections of the Constitution. Often confessions are given to obtain the short-term reward of ending an unpleasant interrogation (Goldstein & Goldstein). When Police Officers and individuals do not share the same language, and an arrest is imminent, Police Officers must secure a ‘qualified’ interpreter in order to make themselves understood to those whom they speak. When the individual is of a protected minority group, such as someone who is ‘disabled’ (deaf), myriad federal laws including inalienable Constitutional Rights, federal discrimination laws (ADA, Civil Rights Act of 1968), and other liberty interests are effectuated. Ramifications regarding safety and the judicious administration of justice come into play during initial stages of contact when Police attempt to cuff someone to whom they have not clearly conveyed their intention, and who does not necessarily understand why he/she is being handcuffed.

Questions Regarding the Manner of Arrest of the Person Who is Deaf

• Did the Police ‘convey which law’ (and its elements) had been violated before bringing the suspect into Police custody?
• A noise violation (misdemeanor)?

• Disorderly conduct (misdemeanor)?

• Domestic violence (felony)?

• An assault (felony)?

• A battery (felony)?

• Did the individual who is deaf understand the charges Police intended to bring against him/her? What was the standard the Police used to check?

• Did the suspect who is deaf understand Police intended to cuff and remove the individual from the premises (home, workplace, other location) and bring the individual into custody?

• When a suspect has no knowledge of imminent cuffing and arrest due to ineffective communication, would a charge of ‘Resisting Arrest’ or ‘Disorderly Conduct’ be a valid charge? Or one that should be expunged from a permanent Police record?
• Did the Police Officer read to the suspect who is deaf his rights so he/she could make an informed decision regarding whether to invoke his/her rights? What was the standard the Police used to check comprehension?

• In what manner were the Miranda warnings (MW) conveyed? Were the Rights read aloud verbatim?

• Has an individual who is deaf been ‘read his/her rights’ when the Officer reads MW aloud?

• Has an individual been ‘read his/her rights’ when the Officer hands a piece of paper containing MW to the deaf person (DP) and gestures ambiguously to the DP (intending for the DP to read the paper)?

• Has an individual who is deaf been ‘read his/her rights’ when the Officer hands the suspect the text conveyed in a language other than the suspect’s primary language?

• Can the Police sufficiently demonstrate that the waiver to Miranda warnings was understood by the accused, and made ‘knowingly,’ ‘intelligently,’ and ‘voluntarily’?

• If a Police Officer waves a Waiver of Rights form in front of a suspect and gestures ambiguously to the DP (intending for the DP to sign the Waiver of Rights form), is it a valid waiver? According to Goldstein & Goldstein, if the reading level of the Miranda Rights exceeds the suspect’s by two grade levels, the waiver is questionable.

• Is a statement given by a suspect who is deaf and Limited English Proficient (LEP) involuntary, when an ASL interpreter has been requested and denied, resulting in incommunicado detention?

• Is an arrest of a deaf person who is Limited English Proficient (LEP) determined without use of an ASL interpreter, and held incommunicado detention illegal?

• Is a suspect, because of his/her arrest and incommunicado detention, in fact denied being informed of his/her right to silence without an ASL Interpreter after one had been requested? Denied his request of counsel? Denied his access to irrevocable liberties, such as access to family, friends, freedom, etc…?

• If a Police Officer punches a suspect in the face during arrest, is the voluntariness of a waiver compromised?

• Are Police Officers who punch suspects whom they are investigating in the face guilty of excessive force? Battery (a felony)?

• The question arises whether the suspect who is deaf, without an interpreter to provide communication access, is aware he/she is in custody at the time of questioning when he/she is not initially a suspect in an investigation, and in being in his/her home, is not in a situation where he/she would feel compelled to talk.

• The question arises whether a Police Officer who has not secured a qualified interpreter has failed to obtain critical information regarding special considerations needed to avert a ‘threat of real and immediate harm’ when a suspect who is deaf has special medical needs and is being taken into custody.

• The question arises regarding the legality of an arrest when Police Officers interrogate individuals other than the suspect (family members, relatives, friends), rather than securing a ‘qualified’ interpreter in order to speak directly with the suspect to obtain a statement. Are statements made by family members, relatives, and friends to the Police Officer, who then repeats the statement of the suspect in Court inadmissible hearsay?

Knowingly, Intelligently, and Voluntarily Prongs

Miranda warnings require meaningful advice be given to a suspect, upon which the individual can then knowingly and intelligently act. Due Process requires the government inform the suspect of the crime for which the individual has been charged. Both pertain to inalienable rights that must be given in a language the individual understands.

In fact, Police Officers are unable to determine whether a waiver to the right to silence and the right to counsel was made ‘knowingly,’ ‘intelligently,’ and ‘voluntarily,’ or whether there were pronounced comprehension deficits unless they employ a ‘qualified’ interpreter needed to facilitate meaningful reciprocal communication with the suspect.

The question is raised whether Police Officers employ an absolute standard to determine if the suspect, who is deaf, had adequate understanding and appreciation of Miranda warnings upon arrest. Meaningful reciprocal communication between a Police Officer and a suspect is compromised when consideration is not given to the complexity of the situation, such as cuffing an individual’s hands behind his/her back when the individual uses his/her hands to communicate. Determination of a Waiver of Miranda warnings cannot be made without effective communication.

Questions Regarding the Rights of a Spouse or Significant Other Who is Also Deaf

• The question arises whether a spouse or significant other (also deaf) of the suspect who is arrested is additionally denied rights under the Americans with Disabilities Act (ADA) when the individual also requests an interpreter in order to have communication access to understand the situation pertaining to their intimate partner who is being arrested, and the individual’s request is denied.

• The question arises whether a Police Officer who is informing a spouse or significant other of the suspect who is arrested (also deaf) of a No Contact Order (NCO) and the ramifications thereof, which was about to be initiated without using a ‘qualified’ interpreter, constitutes a failure to inform two individuals, and failure to deal appropriately with two individuals who are deaf.

• The question arises whether Police also neglect to inform a spouse or significant other (also deaf) ‘of suspected misconduct’ resulting in a NCO when no interpreter is provided. Without an interpreter Police Officers cannot ‘describe the person to be seized,’ and thus violates the unreasonable seizure element of the Fourth Amendment when no exigent circumstance exists.

There may be further confusion regarding alleged misconduct when the spouse or companion does not request a NCO, and without an interpreter, also could not have questions answered, and confusion mitigated. No Contact Orders are subject to a high degree of Constitutional scrutiny under the Fourteenth Amendment Due Process Clause. Factors that justify ordering a NCO include the seriousness of the alleged misconduct that is being investigated, and must be narrowly tailored according to the imminent need (Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984)).

• The question arises whether the Fourteenth Amendment containing the substantive Due Process provision of the Constitution providing the right to form and maintain an intimate relationship with one’s spouse is violated when a NCO is initiated without the mutual reciprocal communication required during an investigation to determine extenuating circumstances or imminent harm to an occupant of the home.

• When the spouse of a suspect has also requested an interpreter and has been denied one, and he/she is not provided effective communication when attempting to ask questions regarding the duration of a separation, the question arises whether the Fourteenth Amendment containing the substantive Due Process provision of the Constitution providing the right to sustenance of a family and associated interests are violated when the spouse of the alleged suspect is not informed the suspect is not allowed to be on the same premises as the suspect’s spouse in order to share in the responsibility of caring for their children (Roberts).

• The question arises whether a NCO that is conducted without an investigation of the suspect and spouse, due to absence of a ‘qualified’ interpreter, unduly burdens the intimate relationship and personal interests at stake for both, and constitutes a violation of the rights of two individuals.

• The question arises whether an inquiry into a police department’s refusal to hire an interpreter, resulting in absence of requisite answers to questions while conducting a preliminary investigation, is pro se the absence of sufficient governmental justification for a NOC, an act which may be deemed to violate Constitutional privacy rights of two individuals.

• The question arises whether there should be an inquiry into a police department that makes a decision to use extended family members and children as interpreters instead of ‘qualified’ certified interpreters, and whether doing so violates the rights of two individuals who are deaf.

• The question arises whether police department’s decision to question extended family members and children, and NOT the alleged suspect or the alleged victim taints any evidence.

Recommendations for Modifications of Policies, Practices, and Procedures

The RI Commission for the Deaf and Hard of Hearing (RICDHH) has established an Emergency Interpreter Referral Service (EIRS) and maintains an updated list of credentialed interpreters who can eliminate communication barriers, not only for every specialization area (legal, mental health, and medical emergency), but also for every subset of the Rhode Island Deaf Community, which includes individuals who are deaf, deaf-blind, deaf with low vision, and hard-of-hearing. Law Enforcement Officers should obtain the list of ‘certified legal,’ ‘qualified legal,’ and ‘language-skilled’ interpreters, whom they may reserve for critical incidents where effective and meaningful reciprocal communication is required.

Only qualified interpreters, per the ADA congressional mandate, who possess requisite certification, requisite license, and knowledge of the specialized area and legal issues at issue, should be contacted to provide effective communication when conveying Miranda warnings. Research has shown that not just any interpretation of the Miranda warnings will suffice. Rather, a specific proficiency in American Sign Language competency is required of interpreters for the deaf so that suspects are able to fully be apprised of their rights (Twersky-Glasner, supra note 9, 598-99).

When considering what kinds of communication will require an interpreter, complexity of the communication will help determine whether an interpreter is necessary for effective communication. When in doubt, Police and Law Enforcement officials may contact the Interpreter Referral Specialist at the RI Commission for the Deaf and Hard of Hearing (RICDHH).

Provisions should be initiated regarding the use of a Certified Deaf Interpreter (CDI) or Deaf Interpreter (DI) to work as a team member with a certified interpreter who is hearing. The CDI/hearing interpreter team is able to communicate more effectively than a hearing interpreter alone. Each interpreter receives the message (from the speaker) in one communication mode, processes it linguistically and culturally, and then conveys it in the appropriate communication mode (to the listener). The CDI and hearing interpreter team work together to understand a deaf individual’s message and confer with each other to arrive at the most accurate interpretation (RID).

The creation of an advisory committee to liaise with the Public Safety Grants Administration Office should be initiated. The advisory committee could coordinate comprehensive planning for procedures and execution of requests for proposals (RFPs) and sub-grant applications for the adequate funding of Interpreting Services needed to improve Police Officers’ and other Law Enforcement officials’ responses to crime issues (preliminary investigations, imminent mandatory arrests, pre-arraignment encounters, diversion programs, conveyance of the Miranda warning and Implied Consent Advisory, etc…) that relate to individuals who are deaf. The advisory committee may also investigate sources of other federal funding provided to Police Departments (Department of Justice (DOJ), United States Department of Health and Human Services (HHS), and the Department of Transportation (DOT)).

State legislation should be enacted, enforced, and monitored, regarding protocol for the use of ‘qualified’ interpreters for any individual who is deaf, when arrest is imminent, when sentenced to probation or any kind of diversion program, and subject to or serviced by Law Enforcement activities (Executive Order 13166). It is critical to have access to meaningful reciprocal communication when questions need to be answered and in order to make informed decisions regarding a wrongdoing, otherwise the suspect loses a valuable learning opportunity.

State legislation should be enacted, enforced, and monitored, regarding protocol for Law Enforcement Officials to make bona fide reasonable efforts to secure a ‘qualified’ interpreter for any individual who is deaf, when arrest is imminent for operating a motor vehicle under the influence (OUI). Much like the Miranda warnings, conveyed to ensure that the suspect cannot subsequently raise a defense of “subjective confusion,” conveyance of the statutorily required complex instructions inherent in the Implied Consent Advisory, as well as the unambiguous response from the individual who is deaf (compliance or refusal to submit), requires effective and meaningful reciprocal communication. Reliance on conveyance via an English written text for an individual who is Limited English Proficient (LEP) and uses American Sign Language (ASL) cannot be regarded as a reasonable method which would reasonably convey the warnings contained in Rhode Island General Laws 37-21-2.1. Effective communication and pertinent access to language is at issue. Emphasis is placed on the phrase ‘bona fide reasonable efforts to secure a ‘qualified’ interpreter’ while being circumspect that the Law Enforcement Official is at risk of losing evidence of intoxication.

State legislation should be enacted regarding protocol that calls for an appropriate adult or independent third party to be present as well as a qualified interpreter when dealing with individuals who are deaf, who are vulnerable due to having language deficits, mental illness, intellectual disabilities, or other deficits, in order to limit the adversarial and antagonistic nature of Police interrogations.

Alternative handcuffing procedures for suspects who are deaf, who require hands to communicate, should be established. Similar to suspects who are pregnant, juvenile, disabled, or obese, suspects who are deaf, unless an imminent threat to the safety of others should be allowed to have their hands cuffed in front. Approximately thirty percent of individuals who are deaf have balance dysfunction (John Hopkins School of Medicine). A suspect who has had his/her hands cuffed behind his/her back is at a serious risk of injury if he/she falls.

Official language identification cards displaying the State of Rhode Island logo should be distributed on a voluntary basis to allow individuals who are deaf, who are LEP to identify the language he/she speaks to Police and other Law Enforcement officials. The official ‘proof of deafness’ card (e.g., “I am deaf and use American Sign Language (ASL)”) allows the LEP person to immediately and without any confusion inform Police Officers and Law Enforcement the individual has hearing loss, and mitigates any question regarding ignoring admonitions or other intentional defiance. Additional misconceptions may be clarified if deemed necessary, and added to the card (“I do not read lips,” or “English is my second language,”).

Moving Forward 

The Department of Justice (DOJ) states that Title II of the ADA prohibits discrimination against people with disabilities, and publishes the Congressional mandate on websites that are accessible to Police Officers and Law Enforcement Officials. In addition, Police Officers and Law Enforcement Officials (Customs Officers, Probation Officers, Parole Officers, etc.), beginning with initial contact, are bound to procedures that serve as safeguards against indiscriminate treatment of suspects, as Courts have suppressed evidence where it was found that the Miranda warning was not adequately conveyed to the defendant (State of Oregon v. Mason).

Judges have acknowledged and ruled on particular issues after relying on the principle of ‘precedent’ (stare decisis) that bind future decisions that relate to similar issues or facts. It is critical for Police Officers and Law Enforcement Officials to be apprised of case law that has been established through the decisions of Judges in order to promote stability in the judicial system.

(US Supreme Court Precedents).

Police action that requires preliminary investigation of an individual who is deaf and Limited English Proficient (LEP) requires securing a ‘qualified’ American Sign Language interpreter so they may gather testimony that serves as evidence needed to make custodial determinations. The inherent nature of interrogations require mutual reciprocal communication, which cannot be accomplished via pen and paper unless one is certain the suspect is bilingual in both American Sign Language and English.

Inalienable Constitutional Rights, federal discrimination laws, and civil rights laws are not revocable under any circumstance. Police Officers and Law Enforcement officials (Customs Officers, Probation Officers, Parole Officers, etc.) who provide services to individuals who are deaf in the community are at all times required to provide effective communication access to individuals who are deaf. To secure a qualified interpreter, you may contact RI Commission for the Deaf and Hard of Hearing (RICDHH) at (401) 222-5300.

 

Case Law

State v. Hindsley, 2000 WI App 130, 237 Wis. 2d 358, 614 N.W.2d 48

The Wisconsin Court of Appeals upheld a ruling that even though a deaf defendant had functional skills in English, those skills were insufficient to enable him to understand and knowingly waive his Miranda rights in either written or signed English forms. In Hindsley the court noted that there was: evidence that Hindsley does use English and can communicate “beyond ASL, that he involves himself with other people using English; that he writes notes; that he can obtain most of his daily needs and necessities in that way; that he can communicate at least to some degree about more subtle issues than that.” However, the court found that none of that evidence suggested he communicated in detail about intangible ideas in English.

Shook v. Mississippi, 315 No. 2:93CV118-D-B, 2000 WL 877008 (N.D. Miss. June 8, 2000)

The U.S. District Court for the Northern District of Mississippi considered the competency of a deaf defendant who claimed to be unable to understand written language or the oral interpreter provided by the court. There was no evidence whatsoever that the petitioner in Shook suffered from any mental disease or defect. His claim of incompetency rested solely on the linguistic deficit caused by his deafness. He asserted “he was incompetent to stand trial because his deafness rendered him unable to understand the criminal proceedings against him and prevented him from consulting with or assisting his attorney in preparing his defense.”

McNabb v. United States, 142 F. 2d 904 – 1944

Promulgated a rule excluding confessions obtained after an ”unnecessary delay” in presenting a suspect for arraignment after arrest. This rule was designed to implement the guarantees assured to a defendant by the Federal Rules of Criminal Procedure, and was clearly informed with concern over incommunicado interrogation and coerced confessions. While the Court never attempted to specify a minimum time after which delay in presenting a suspect for arraignment would invalidate confessions, Congress in 1968 legislated to set a six-hour period for interrogation following arrest before the suspect must be presented.

“The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Obviously, a court seeking to determine whether the making of a confession was voluntary operated under a severe handicap, inasmuch as the interrogation process was in secret with only police and the suspect witness to it, and inasmuch as the concept of voluntariness referred to the defendant’s mental condition.

Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378

The Edwards Rule held while it will often be good police practice for officers to clarify whether a suspect making an ambiguous statement really wants an attorney, they are not required to ask clarifying questions.

Davis v. United States, 512 US 452 - 1994,  "Maybe I Should Talk to a Lawyer" ... by T Chen • 1996 • Cited by 6 — United States: "Maybe I Should Talk to a Lawyer" Means Maybe Miranda is Unraveling, ... attorney did not "constitute a request for counsel under ...
https://supreme.justia.com/cases/federal/us/512/452/

“Maybe I should talk to a lawyer” was not a request for counsel. https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1517&context=plr

U.S. v. MOSQUERA, 816 F. Supp. 168 (1993)

Effective assistance of counsel is impossible unless the client can provide his or her lawyer with intelligent and informed input (Penumbra of the Sixth Amendment).

U.S. v. MOSQUERA, 816 F. Supp. 168 (1993)

A defendant’s right to have real notice of the true nature of the charge against him is the first and most universally recognized requirement of due process (Penumbra of the Fourteenth Amendment).

Chisolm v. McManimon, 275 F. 3d 315, 325 (3d Cir. 2001)

The ultimate goal of any auxiliary aid or service is to ensure that communication with a disabled person is as effective as communication with others.

U.S. ex. rel. Negron v. New York  (2d Cir. 1970)

The Supreme Court rejected silence as constituting a waiver of a party’s right to an interpreter in People v. Ramos. Rationale: The right was unknown, accordingly, there could be no intention to waive it.

State of Ohio v. Alejandro Ramirez   No. 97-L-289

A twenty-year-old Mexican national who could not speak, read, or understand English was interviewed by a law enforcement administrative assistant who acted as interpreter had no familiarity with legal terms and produced a non-intelligible rendition of the questioning and the Miranda warning. Ramirez was convicted of one count of murder but the case was later reversed and remanded. This case has been a learning landmark for the judiciary with regard to communication with LEP persons.

Colorado v. Mejia-Mendoza, 965 P.2d 777, 781 (Colo. 1998)

The Court found that a person’s constitutional rights are not less meaningful during a police interrogation than in court.

State v. Hindsley, 614 N.W. 2d (Wis. App. 2000)

The Interpreter interpreted defendant’s ‘head nod’ to mean “Yes,” but in American Sign Language (ASL) it may mean, “I understand,” “I’m waiting for clarification,” or “Go ahead.”

State of Iowa v. James Walter Carter, 577 N.W. 2d 855 (Iowa App., 1998)

A shake of the head “no” does not constitute a knowing, voluntary and intelligent waiver of right to interpreter in an arrest interrogation. Additionally, the actions of the officer in searching for an interpreter, after the Defendant shook his head, indicates that the officer himself did not take the Defendant’s simple “no” to be a waiver. When stopped by the police, the officer realized Defendant driving while intoxicated was hearing impaired and asked if he wanted an interpreter. Defendant shook his head “no,” but the officer continued to try to find an interpreter for Defendant. Defendant was taken to county jail and was then given a paper to sign that waived his right to an interpreter. However, the Defendant had limited reading skills and the light in the cell he was in was very low. Defendant claimed that he thought the paper provided him an interpreter, not that it was a waiver. A videotape of interactions between officers and Defendant in the holding cell shows that there were communication problems between Defendant and the police.

Terry v. Ohio, 392 U.S. 1 (1968)

Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.

United States v. Carrion, 488 F.2d 12, 14 (1st Cir.1973), cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974), and the right to an interpreter rests most fundamentally … on the notion that no defendant should face the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment.

People of the State of Michigan v. Mary Ann McBride (1994)

Trial Court correctly found that Ms. McBride did not knowingly, intelligently, and voluntarily waive her rights where: (1) There is no evidence on the record that Ms. McBride understood either the verbal or the written warnings; (2) The verbal recitation of rights was inadequate; and (3) The Police failed to honor Ms. McBride’s invocation of her right to remain silent.

Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977)

The Sixth Amendment to the United States Constitution (the “Constitution”) dictates that the suspect has a right to counsel. Whether the officer’s conversation with the defendant constitutes an interrogation that violates the defendant’s right to counsel, and therefore requires the suppression of the evidence.

Held. The evidence should be suppressed because the defendant was denied counsel during an interrogation environment. Once judicial proceedings begin, such as the arraignment, assistance of counsel is required. In this case, the defendant not only did not waive his right to counsel, he affirmatively maintained it through several exchanges between the officers.

Coyote v. United States, 380 F.2d 305, 308 (CA10 1967)

Cert. denied, 389 U.S. 992. The specific complaint here is that the mandate of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, was not observed because the clause in the written statement that, “…I can talk to a lawyer or anyone before saying anything, and that the judge will get me a lawyer if I am broke” reflects that appellant was not informed with sufficient clarity of his right to a court appointed attorney at the time the statement was made.

Coyote v. United States, 380 F.2d 305, 308 (CA10 1967)

Totality of the Circumstances test: Taking all characteristics of the defendant and his arrest into consideration to determine whether a confession or waiver of rights is valid and admissible in court.

Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Fare v. Michael)

Miranda Rights are predicated on two factors: “an uncoerced choice” and a “level of comprehension” by the suspect that reflects an awareness “of both the nature of the right being abandoned and the consequences of the decision to abandon it.”

State v. Bittick, 806 S.W. 2d 652, 658 (Mo., en. banc. 1986) and Miranda v. Arizona, (1966)

The terms knowingly and intelligently, of the three-pronged requirement knowingly, intelligently, and voluntary test, are often used interchangeably, but are not synonymous. The three prongs must be established in order for a waiver to be valid and a subsequent statement admissible.

Garner v. Mitchell, 502 F.3d 394 (6th Cir. 2007)

The Sixth Circuit concluded that Mr. Garner did not knowingly and intelligently waive his Miranda rights before speaking with police, and thus, admission of his statement at trial was unconstitutional.

Miranda v. Arizona, 384 U.S. 436 (1966)

To protect the privilege against self-incrimination, in Miranda, 384 U.S. at 444, the United States Supreme Court held that a person who has been “taken into custody or otherwise deprived of his [or her] freedom of action in any significant way” must, before being subjected to interrogation by law enforcement officers, be advised of his or her rights to remain silent, to have an attorney present, and to be warned that any statement the person makes may be used as evidence against him or her. Statements elicited in violation of this rule are generally inadmissible in a criminal trial.

Gutierrez v. Municipal Court of S.E. Judicial District, 838 F.2d 1031,1039 (9th Cir. 1988)

The court recognized that requiring the use of English only is often used to mask national origin discrimination.

Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984)

Two types of association are protected by the federal Constitution: intimate association (i.e., certain close and intimate human relationships like family relationships) and expressive association (i.e., association for the purpose of engaging in activities protected by the First Amendment). The Chapter argues that it is a constitutionally protected group because its members engage in intimate association or expressive association (or both), and asserts that its members’ associational rights were improperly infringed by the University’s action.

People v. Sandoval, 736 P.2d 1201 (Colo. 1987)

The tape-recorded interrogation revealed that the person acting as interpreter failed to interpret accurately and made erroneous and conflicting statements to a defendant about his Miranda rights.

Executive Order 13166 (EO 13166)

The first of two initiatives is designed to better enforce and implement an existing obligation: Title VI of the Civil Rights Act of 1964 prohibits recipients of federal financial assistance from discriminating based on national origin by, among other things, failing to provide meaningful access to individuals who are Limited English Proficient (LEP). The Executive Order requires federal agencies that provide federal financial assistance to develop guidance to clarify those obligations for its recipients, which are primarily state and local law enforcement agencies and departments of corrections.

State v. Piddington, No. 99-1250-CR

In determining whether the arresting officer has used reasonable methods that would reasonably convey the necessary information in light of the pertinent circumstances [implied consent advisory], the focus rests upon the conduct of the officer.

State v. Piddington, No. 99-1250-CR

Illustrates how vital it is for the legislative, executive, and judicial branches of this state to work together to provide qualified interpreters and translators so that persons who cannot hear, speak, or understand English have meaningful access to the legal system [implied consent advisory]. That’s the fair and right thing to do.

State v. Tosar, 180 Ga. App. 885 (350 SE2d 811)

The sole reason we found the officer “conveyed” to Webb his implied consent rights was that a sign language interpreter was present and conveyed the officer’s advice and requests to Webb “within the meaning of the implied Consent law.” Webb at 874. We specifically concluded that “the spirit and intent of the law giving the hearing impaired the right to have an interpreter present was satisfied.” (Emphasis supplied.) Id. at 875.

Citations

Americans with Disabilities Act of 1990 (ADA), Title II, 42 U.S.C. §§ 12131-12161

Americans with Disabilities Act of 1990 (ADA), Title III, 42 U.S.C. §§ 12181-12189

Americans With Disabilities Act of 1990 (ADA), Pub. L. No. 101-136, 104 Stat. 327 (1990)

Department of Justice, Civil Rights Division, Communicating with People Who are Deaf or Hard of Hearing: ADA Guide for Law Enforcement Officers (2006). Retrieved October 14, 2012 from http://www.ada.gov/lawenfcomm.htm

Department of Justice, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons. Federal Register/Vol. 67, No. 117. Retrieved January 6, 2013 from http://www.gpo.gov/fdsys/pkg/FR-2002-06-18/pdf/02-15207.pdf

Executive Order (EO) 13166 (Department of Justice)–“Improving Access to Services for Persons with Limited English Proficiency.” Retrieved October 14, 2012 from https://www.justice.gov/crt/executive-order-13166

Find Law (2012): Confessions: Police Interrogation, Due Process, and Self Incrimination. Retrieved September 23, 2012 from http://caselaw.lp.findlaw.com/data/constitution/amendment05/09.html

Goldstein, Alan, and Naomie E. Sevin Goldstein (2010). Evaluating Capacity to Waive Miranda Rights: Best Practices in Forensic Mental Health Assessment. Oxford University Press.

Lavigne, Michele and Vernon, McCay (2003).  An Interpreter Isn’t Enough: Deafness, Language, and Due Process. Wisconsin Law Review, No. 844, 2003; University of Wisconsin Legal Studies Research Paper.

Legal Aspects of Interrogation: Presented to the Topeka Police Department. Retrieved September 11, 2012 from http://www.kscoplaw.com/outlines/interrogate.html

Morris, Benjamin G. (1967). The Sixth Amendment’s Right of Confrontation and the Non-English Speaking Accused, 41 Fla.B.J. 475, 481-82

NAJIT: Language Assistance for Law Enforcement (2006). Retrieved September 11, 2012 from https://najit.org/wp-content/uploads/2016/09/LanguageforLawEnforcement2006.pdf

Registry of Interpreters for the Deaf (RID) Standard Practice Papers. Retrieved September 17, 2012 from http://www.rid.org

Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355, coded as amended at 29 U.S.C. § 701 (2000)

Rhode Island General Laws § 31-27-2.1. Retrieved January 5, 2013 from https://webserver.rilegislature.gov//Statutes/TITLE31/31-27/31-27-2.1.htm

Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984). Retrieved October 7, 2012.

Title IV of the Civil rights Act of 1968  (Pub.L. 90-284, 82 Stat. 73, enacted April 11, 1968)

U.S. Department of Justice, Civil Rights Division, Disability Rights Section: Commonly Asked Questions About the Americans with disabilities Act and Law Enforcement (2006). Retrieved September 1, 2012 from http://www.ada.gov/q%26a_law.htm

U.S. ex. rel. Negron v. N. Y. (310 F. Supp. [E.D.N.Y 1970], AFF’D 434 F.2D 386 [2D CIR. 1970])

Vernon, McCay and Jean Andrews (2011). Basic Legal Issues in Handling the Cases of Deaf Defendants. Retrieved September 1, 2012 from http://www.nacdl.org/champion.aspx?id=15997

With Their Own Hands: A Community Lawyering Approach to Improving Law Enforcement Practices with the Deaf Community. Retrieved November 23, 2012 from http://scholar.valpo.edu/cgi/viewcontent.cgi?article=1832&context=vulr

©  2012 – Dorothy Hodge MSL, CI, CT