2005 Regular Session
To: Judiciary A; County Affairs
By: Representative Green
AN ACT TO REQUIRE ALL COURTS TO HAVE COURT-APPOINTED INTERPRETERS TO ASSIST IMMIGRANTS WHO HAVE NEED TO USE THE COURT SYSTEM; TO ENACT DEFINITIONS; TO PROVIDE THAT INTERPRETERS MAY BE COMPENSATED OR VOLUNTEERS; TO REQUIRE INTERPRETERS TO TAKE AN OATH; TO SPECIFY THE SITUATIONS IN WHICH AN INTERPRETER IS NEEDED; TO SPECIFY THE SITUATIONS IN WHICH A RECORD SHALL BE MADE OF INTERPRETED TESTIMONY; TO PROVIDE THAT ANY EXPENSE IN COMPENSATING AN INTERPRETER CAN BE ASSESSED AS COSTS; TO AMEND SECTION 99-17-7, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Definitions. The following words and phrases shall have the meanings ascribed to them unless the context clearly requires otherwise:
(a) "Non-English speaker" means any party or witness who cannot readily understand or communicate in spoken English and who consequently cannot equally participate in or benefit from the proceedings unless an interpreter is available to assist the individual. The fact that a person for whom English is a second language knows some English does not prohibit that individual from being allowed to have an interpreter.
(b) "Interpreter" means any person authorized by a court and competent to translate or interpret oral or written communication in a foreign language during court proceedings.
(c) "Court proceedings" means a proceeding before any court of this state or a grand jury hearing.
SECTION 2. Interpreter to be Appointed. All courts of this state shall appoint an interpreter when required under this act.
SECTION 3. Compensation. The court may appoint either an interpreter who is paid or a volunteer interpreter.
SECTION 4. Oath, Confidentiality and Public Comment. (1) Prior to providing any service to a non-English speaking person, the interpreter shall subscribe to an oath that he or she shall interpret all communications in an accurate manner to the best of his or her skill and knowledge.
(2) The oath shall conform substantially to the following form:
"Do you solemnly swear or affirm that you will faithfully interpret from (state the language) into English and from English into (state the language) the proceedings before this court in an accurate manner to the best of your skill and knowledge?"
(3) Interpreters shall not voluntarily disclose any admission or communication that is declared to be confidential or privileged under state law. Out-of-court disclosures made by a non-English speaker communicating through an interpreter shall be treated by the interpreter as confidential or privileged or both unless the court orders the interpreter to disclose such communications or the non-English speaker waives such confidentiality or privilege.
(4) Interpreters shall not publicly discuss, report or offer an opinion concerning a matter in which they are engaged, even when that information is not privileged or required by law to be confidential.
(5) The presence of an interpreter shall not affect the privileged nature of any discussion.
SECTION 5. Record of Interpreter Testimony. (1) No record shall generally be made of the non-English testimonial statements. Where a challenge is made to the accuracy of a translation, the court shall first determine whether the interpreter is able to communicate accurately with and translate information to and from the non-English speaking person. If it is determined that the interpreter cannot perform these functions, arrangements for another interpreter shall be made, unless testimony that is cumulative, irrelevant or immaterial is involved. Where the court determines that the interpreter has the ability to communicate effectively with the non-English speaker, the court shall resolve the issue of the contested translation and the record to be made of the contested testimony in its discretion. Any transcript prepared shall consist only of the English language spoken in court.
(2) Whenever a party was denied the right to use an interpreter of the party's own choosing, the court shall make an audio or audio-visual recording of any testimony given in a language other than English. This includes any colloquies between the court and any non-English speaking persons, statements or testimony made to the court given by a non-English speaking person, as well as all translations provided by the interpreter in the proceedings. This recording shall become part of the record of the proceeding. There is no requirement to record the translation for a non-English speaking party of other proceedings where the party does not directly participate, such as the translation of testimony of an English speaking witness when the party is represented by counsel, nor shall a record be made of private conversations between parties and counsel.
(3) In all cases where an audio or audio-visual recording is not required, the court shall have the discretion to authorize the making of such a recording.
SECTION 6. Determination of Need for an Interpreter. (1) An interpreter is needed and a court interpreter shall be appointed when the judge determines, after an examination of a party or witness, that: (a) the party cannot understand and speak English well enough to participate fully in the proceedings and to assist counsel; or (b) the witness cannot speak English so as to be understood directly by counsel, court and jury.
(2) The court should examine a party or witness on the record to determine whether an interpreter is needed if:
(a) A party or counsel requests such an examination;
(b) It appears to the court that the party or witness may not understand and speak English well enough to participate fully in the proceedings; or
(c) If the party or witness requests an interpreter. The fact that a person for whom English is a second language knows some English should not prohibit that individual from being allowed to have an interpreter.
(3) After the examination, the court should state its conclusion on the record, and the file in the case shall be clearly marked and data entered electronically when appropriate by court personnel to ensure that an interpreter will be present when needed in any subsequent proceeding.
(4) Upon a request by the non-English speaking person, by counsel, or by any other officer of the court, the court shall determine whether the interpreter provided is able to communicate accurately with and translate information to and from the non-English speaking person. If it is determined that the interpreter cannot perform these functions, the court shall provide the non-English speaking person with another interpreter.
SECTION 7. Interpreter's Fees and Expenses. (1) Any interpreter providing services under this act who is not a volunteer interpreter shall be compensated by the court.
(2) The expenses of providing an interpreter in any court proceeding may be assessed by the court as costs in the proceeding.
SECTION 8. Section 99-17-7, Mississippi Code of 1972, is amended as follows:
99-17-7. Except as provided in Sections 1 through 7 of this act, in criminal cases, the court may appoint an interpreter when necessary, sworn truly to interpret, and allow him a reasonable compensation, as set by the court, payable out of the county treasury.
SECTION 9. This act shall take effect and be in force from and after July 1, 2005.