dissenting.
I must respectfully dissent. "The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment." Estelle v. Williams, 425 U.S. 501, 508, 96 S.Ct. 1691, 48 LEd.2d 126 (1976). While the majority recognizes that in some cases "[an] interpreter is necessary to implement fundamental notions of due process such as the right to be present at trial, the right to confront one's accusers, and the right to counsel," op. at 1288 (quoting Martinez Chavez v. State, 534 N.E.2d 731, 736 (Ind. 1989)), it goes on to hold that a non-English speaking defendant is required to pay for this service unless he or she can make a showing of financial need. I disagree.
I would hold that if a non-English speaking defendant is comvicted and able to pay, the trial court has discretion to order the defendant to pay the cost of the interpreter. Indiana Code § 833-37-2-3 provides statutory guidelines for the imposition of costs in criminal actions, and this Court has stated: "It has long been the law of this state that one who is convicted of a eriminal offense may appropriately be assessed the costs of prosecution." Gooch v. State, 685 N.E.2d 152, 155 (Ind.Ct.App.1997). Addressing the issue before us, the Louisiana Supreme Court held that a "trial court erred when it denied defendant's motion for the appointment of a translator on the ground that defendant was not indigent," but, citing a state statute, it continued, "should the defendant be convicted, the costs for any necessary foreign language interpreter is assessable as a cost of the prosecution or proceeding against him." State v. Lopes, 805 So.2d 124, 128-29 (La.2001). To support this holding, the Court cited the statutes of three other states allowing for such an assessment of costs. Id. at 129 n. 9 (citing Ark.Code Ann. § 16-89-104 (2006); Ohio Rev.Code Ann. § 2885.09 (LexisNexis 2006); Utah Code Ann. § 78-24-4 (2006)). Ordering a defendant to pay the costs of an interpreter after a conviction, however, is a big leap from ordering a defendant, who is presumed innocent, to pay for an interpreter from the outset of a criminal proceeding.
The majority likens paying for an interpreter to paying for an attorney, noting that it is only when a defendant is without financial ability to pay that the government must provide an attorney. I cannot accept this analogy. Rather, I see an in*1290terpreter as one of what the United States Court of Appeals for the Second Circuit once labeled the "physical accoutrements" of a trial. See United States v. Desist, 384 F.2d 889, 903 (2nd Cir.1967), cert. granted on other grounds. Requiring a non-English speaking defendant to pay for an interpreter, to me, would be tantamount to requiring any defendant to pay for a courtroom, a bailiff, even a judge. In that way, an interpreter is part of the "basic apparatus" for intelligible and fair proceedings. See id.3 And when the government chooses to make someone a criminal defendant, it should furnish this basic apparatus. A criminal defendant is involuntarily drawn into the judicial system and thereby made subject to its immense powers. To require that defendant to pay merely to be able to understand the words being spoken around him in this system infringes upon basic notions of fairness and due process.
I pause to stress the distinction I see between an attorney and an interpreter. Whereas an attorney is often needed to parse out the legal complexities of a case for an untrained defendant, an interpreter serves the more basic role of relaying to the defendant the content of the conversation around and about him. And whereas defendants without attorneys often represent themselves pro se (albeit with varying levels of success), defendants who cannot speak English and find themselves in an English-speaking courtroom are at a much more critical and fundamental disadvantage than an unrepresented defendant who can speak English,. Therefore, I reject the suggestion that a non-indigent should have to pay for an interpreter simply because he has to pay for an attorney.
The majority also rejects the argument that its opinion will lead eriminal defendants to enlist unqualified or incompetent interpreters. It reasons that, "as here, a trial court may permit only certified interpreters to be used." Op. at 1289. I respond that just because this trial court required Arrieta to secure a certified interpreter does not mean that the same will be required by every trial court in every case. No statute or court rule requires interpreters to be certified. The Indiana Supreme Court recently launched a Court Interpreter Certification program, largely to combat the many problems associated with unqualified interpreters. See Court Interpreter Certification Program, available ot http://www.in.gov/jadiciary/ interpreter (last accessed on Nov. 1, 2006). This program is laudable, but practical considerations, such as the plethora of languages spoken in this country, prevent it from ever being made mandatory. In sum, certification is not a prerequisite to serving as an interpreter in Indiana's trial courts. As such, there is a very real possibility that a criminal defendant could retain the services of an uncertified or otherwise unqualified interpreter. Of particular concern is the prospect of a person with an emotional or professional interest in the case, such as a family member, a friend, or a law enforcement officer, serving as an interpreter. The potential consequences of such an arrangement are obvious. In the alternative, a defendant could seek to avoid the cost of an interpreter by indicating to the trial court that he understands more than he actually does, thereby accepting the risks of proceeding without an interpreter. I fear that the majority's opinion will encourage non-English speaking criminal defendants to take one of these two dangerous routes.
*1291I acknowledge the added financial strain that court-provided interpreters could put on Indiana's cash-strapped counties. Nonetheless, some rights transcend fiscal considerations and are so important as to be considered fundamental. As the Indiana Supreme Court has recognized, "[an] interpreter is necessary to implement fundamental notions of due process." Martinez Chaves, 584 NE2d at 786. I would reverse the decision of the trial court and order it to appoint an interpreter to serve Arrieta in all future court-related proceedings in this cause. I would also hold that if Arrieta is eventually convicted, the trial court may, in its discretion, order Arrieta to pay the costs of his prosecution, including the cost of the interpreter.
. I acknowledge that the Desist Court held that an interpreter is not part of this "basic apparatus." I simply disagree.