(dissenting).
{24} I respectfully dissent. Although I agree with the majority with regard to the right of a non-English speaking citizen to serve on a jury and the importance of a jury trial and jury deliberations, I do not agree that there was a presumption of prejudice or any indication that Defendant’s rights were prejudiced.
{25} My point of departure with the majority is the conclusion that the presence of the interpreter in the jury room was unauthorized. I start from the opposite premise. As Defendant states, the non-English speaking jurors had the constitutional right to be accompanied by the interpreter into the jury room. See Rico, 2002-NMSC-022, ¶¶5-9, 132 N.M. 570, 52 P.3d 942. Thus, I begin with the premise that the interpreter’s presence in the jury room was not unauthorized. Indeed, in its order denying a petition for a writ of prohibition or alternative writ of superintending control in State ex rel. Martinez v. Third Judicial District, No. 26,109 (January 26, 2000), attached as an appendix to Rico, 2002-NMSC-022, 132 N.M. 570, 52 P.3d 942, our Supreme Court stated that it believed that “the use of court interpreters during jury deliberations does not constitute an unauthorized presence in the jury room.” Instead, it stated that the “interpreter’s role is bound by ethical constraints, court rules and orders, and court instructions. To the extent that these safeguards may be breached in an individual case, the normal appellate process for correcting other trial errors will provide the most effective remedy.” Id.
{26} There was a breach in the safeguards in this case because the trial court permitted the interpreter into the jury room without an oath to not interfere with or participate in the jury deliberations or an instruction to the interpreter and the jury about the role of the interpreter. The majority concludes that unless the district court administers such an oath to the interpreter, the interpreter’s presence in the jury room is unauthorized. It relies on Dempsey, which holds that court procedures or instructions can assist the court to determine that no impropriety took place when a defendant has raised the issue in the trial court. Dempsey, 830 F.2d at 1091-92. Dempsey does not address the circumstances of this case in which the district court did not have the opportunity to address the interpreter’s presence, and the issue is raised, as a matter of fundamental error, without any evidence of impropriety. Moreover, the Tenth Circuit in Dempsey did not engage any presumption of prejudice. Rather, it considered any undue influence on the part of the interpreter to “rest upon speculation” in the absence of evidence of any impropriety. Id.
{27} The determinative issue to me, when the record does not show any prejudice to Defendant, is whether the district court or Defendant shoulders the responsibility for the absence of the safeguarding oath or instruction. Because I do not believe that the interpreter’s presence was unauthorized, I would focus the inquiry in this case on whether Defendant waived his right to a fair and impartial trial. I would conclude that the integrity of the judicial process has not been so vitiated that Defendant-did not need to raise his argument that there may have been a defect in the process to the district court. As observed by our Supreme Court in State v. Sanchez, 2000-NMSC-021, ¶ 26, 129 N.M. 284, 6 P.3d 486, “the right to trial by a fair and impartial jury is a fundamental right,” but even fundamental rights “may be waived or lost by the accused” if the State demonstrates a waiver. (Internal quotation marks and citations omitted.) See State v. Singleton, 2001-NMCA-054, ¶ 11, 130 N.M. 583, 28 P.3d 1124 (stating that “the right to a fair and impartial jury is a fundamental right that can be waived”). While failure to preserve an issue may be a factor in determining whether there has been a waiver, it does not end the inquiry. See State v. Escamilla, 107 N.M. 510, 515, 760 P.2d 1276, 1281 (1988) (stating that appellate courts will not consider issues not preserved unless they involve fundamental rights or fundamental error, but that even issues involving fundamental rights, including the right to a fair and impartial jury, may be waived).
{28} I believe Defendant waived his argument by not objecting in the trial court. Defendant had requested that a certified interpreter be present at trial to translate for a witness. I disagree with the majority’s assertion that “the transcript does not disclose” whether the same interpreter was used for the jurors. The transcript of the court’s statements and the interpreter’s voice on the tapes of the trial make it clear to me that the interpreter was the same. Because Defendant had requested a certified interpreter, I assume that the interpreter was certified and trained in accordance with the Court Interpreters Act, NMSA 1978, § 38-10-5 (1985). See appendix to Rico, 2002-NMSC-022, 132 N.M. 570, 52 P.3d 942 (pointing to “ethical constraints” as a factor restricting an interpreter’s role during jury deliberations).
{29} The court administered an oath to the interpreter at the beginning of trial that the interpreter would interpret properly in the case. The court further explained that two jurors had requested an interpreter. The interpreter’s participation as an aide to jurors gives rise to a reasonable expectation that she would interpret for the jurors during jury deliberations. Although the court also has the responsibility to ensure the correctness of the process and the protection of Defendant’s rights, I do not believe that Defendant can sit silently as the trial proceeds and not be bound by events that reasonably can be anticipated. See Singleton, 2001-NMCA-054, ¶ 12, 130 N.M. 583, 28 P.3d 1124.
{30} Notably, Defendant’s motion for a new trial argues that the trial court neglected to give the interpreter an oath, not that Defendant was not aware that the interpreter was present in the jury room. There is no indication in the record that Defendant, the jurors, or any other participant had any question about the interpreter’s involvement. See Dempsey, 830 F.2d at 1092.
{31} Not having alerted the trial court to the issue at trial, Defendant raised the issue in a motion for a new trial, stating, speculatively, “we will never know whether the interpreter participated directly or indirectly in the deliberations.” But Defendant did not utilize the avenue provided by the Rules of Evidence to properly challenge the validity of the jury’s verdict. See Dempsey, 830 F.2d at 1092. Under Rule 11-606(B), Defendant could have called upon jurors to testify as to whether the interpreter participated in the jury deliberations in any manner. Defendant did submit a post-trial affidavit from an empaneled potential juror for another purpose, but he did not submit any juror affidavit concerning the presence of the interpreter in the jury room. See State v. Mann, 2002-NMSC-001, ¶ 10, 131 N.M. 459, 39 P.3d 124 (noting that in motion for new trial on basis of juror misconduct defense counsel stated that interviewed jurors had information about misconduct). As a result, the record is without any indication of prejudice.
{32} I note that this case is not one which falls within the type of cases the majority cites as reflecting “a long tradition of finding a ‘presumption of prejudice’ by the mere presence of an unauthorized person before a trial jury or grand jury” performing its core function. Coulter, 98 N.M. at 770, 652 P.2d at 1221; Baird, 90 N.M. at 669, 568 P.2d at 195; Davis, 90 N.M. at 499-500, 565 P.2d at 1016-17; Hill, 88 N.M. at 220, 539 P.2d at 240. In Coulter, the only trial jury case cited, there was an irregularity that resulted in the unauthorized presence; an alternate juror who had heard the evidence and was prepared to deliberate was present for deliberations. Coulter, 98 N.M. at 768, 652 P.2d at 1219. In the grand jury cases, a clear impropriety had occurred. In Baird, the district attorney was present during grand jury deliberations contrary to statute. Baird, 90 N.M. at 668-69, 568 P.2d at 194-95. In Davis, an investigator from the attorney general’s office, whose presence was not statutorily authorized, was present during grand jury testimony. Davis, 90 N.M. at 499-500, 565 P.2d at 1016-17. In Hill, an attorney privately employed by a relative of the victim improperly presented the facts to a grand jury. Hill, 88 N.M. at 218, 539 P.2d at 238. I agree with the majority that the presence in each of these cases was unauthorized and a presumption of prejudice would apply. The interpreter’s presence, however, is different. She is, in effect, an officer of the court who assists the court in the trial. With this role, as earlier discussed, she was not an unauthorized presence, and I would not presume prejudice because of her presence.
{33} Nor do I agree with the majority’s reliance on the NES Guidelines as authority for applying a presumption of prejudice in this case. The NES Guidelines are not rules and state desired procedures, not necessarily required ones. NES Guidelines, Section I (“Because each local court has unique needs and limitations, these guidelines may not be applicable in all courts. Accordingly, these guidelines should not be considered mandatory directives that must be followed in all cases.”).
{34} Lastly, I do not agree with the majority that affirming Defendant’s convictions would constitute allowing Defendant to waive the jurors’ rights. Rico and Singleton both clearly indicate that a defendant can waive his or her right to object to the violation of a juror’s right to serve under the New Mexico Constitution. Rico, 2002-NMSC-022, ¶¶8-9, 132 N.M. 570, 52 P.3d 942 (stating that “a criminal defendant who does not object to an exclusion of a juror in violation of Article VII, Section 3 has waived his or her ability to do so on appeal”); Singleton, 2001-NMCA-054, ¶¶ 9-16, 130 N.M. 583, 28 P.3d 1124 (stating that “New Mexico courts have recognized that both the state and the defendant in a criminal action can protect the rights of prospective jurors to be free from discriminatory exclusion” and affirming Defendant’s convictions despite the exclusion of a juror in violation of Article VII, Section 3). The Supreme Court of the United States has similarly held that a defendant can waive his or her right to object to the violation of a juror’s right to serve under the Equal Protection Clause. See Batson v. Kentucky, 476 U.S. 79, 87, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (noting that a juror’s right to equal protection is clearly violated when he or she is excluded on the basis of race); Teague v. Lane, 489 U.S. 288, 297-98, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (holding that the defendant waived his right to challenge the exclusion of jurors in violation of the Equal Protection Clause because he raised that issue too late).
{35} Because I do not agree with the majority that a prophylactic remedy is required in this case, and because Defendant did not alert the trial court to any problem or demonstrate any prejudice, I respectfully dissent.
Appendix 1
Supreme Court of New Mexico Administrative Office of the Courts
John M. Greaeen, Director
Administrative Office of the Courts Non-English Speaking Juror Guidelines
I.INTRODUCTION
II.NON-ENGLISH SPEAKING JUROR ASSISTANCE SERVICES
A. Scope
B. Court Interpreters
C. Jury Summons
D. Juror Questionnaire
E. Jury Handbook and Orientation
F. Jury Selection
G. Trial Proceedings
H. Jury Deliberations
III. COURT INTERPRETATION STANDARDS
A. Certification and Availability Standards
1. Certified
2. Uncertified
3. Availability
B. Written Translation Standards
1. Qualification and Orientation Materials
2. Trial Materials
3. Machine Translation
C. Use and Performance Standards
1. Hours of Service
2. Oath of Interpreter
3. Pre-Interpretation Interview
4. Courtroom Explanation of the Role of the Interpreter
5. Pre-Deliberation Instructions
6. Post-Deliberation Instructions
7. Equipment
IV. COURT INTERPRETATION COSTS
A. Jury and Witness Fee Fund
B. Interpreters in Civil Cases
C. Interpreter Compensation
V.COURT INTERPRETER RECRUITMENT AND TRAINING
A. Administration
B. Special Training
I. INTRODUCTION
These guidelines are intended to assist in the efforts of the New Mexico Judiciary to incorporate non-English speaking (NES) citizens into New Mexico’s jury system. Because each local court has unique needs and limitations, these guidelines may not be applicable in all courts. Accordingly, these guidelines should not be considered mandatory directives that must be followed in all cases. However, all courts are encouraged to implement the standards set forth below to the fullest extent possible.
II. NON-ENGLISH SPEAKING JUROR ASSISTANCE SERVICES
A. Scope
Article VII, Section 3, of the New Mexico Constitution provides that “[t]he right of any citizen of the state to ... sit upon juries, shall never be restricted, abridged or impaired on account of ... inability to speak, read or write the English or Spanish languages.” To comply with this constitutional mandate, all courts should strive to incorporate all New Mexico citizens into our jury system regardless of the language spoken by a prospective NES juror. Because most potential NES jurors speak Spanish as their primary language, these guidelines seek to implement statewide standards for accommodating prospective jurors who speak Spanish. However, where financially and logistically possible, all courts are encouraged to implement these guidelines for other languages.
B. Court Interpreters
Upon request by an NES citizen called for jury duty, all courts should appoint a court interpreter to assist the NES juror or prospective juror. In the absence of a specific request for a court interpreter, all courts should independently determine whether a juror or prospective juror is in need of a court interpreter. To make this determination, a court may consider conducting a limited interview of the juror or prospective juror to assess whether the juror or prospective juror is capable of understanding the proceedings in English.
C. Jury Summons
The New Mexico jury summons form should include a statement in Spanish notifying citizens called for jury duty that assistance is available for those who cannot understand English. The Spanish notice should also provide a telephone number that prospective NES jurors may call for further assistance. The Administrative Office of the Courts (AOC) is responsible for producing jury summonses for local courts that will include an appropriate Spanish notice. The AOC will coordinate with local courts to ensure that an adequate number of trained court personnel are available to respond to calls for assistance from prospective NES jurors.
D. Juror Questionnaire
The AOC is responsible for preparing a Spanish version of the juror questionnaire used by local courts. The AOC is also responsible for distributing copies of the Spanish version of the juror questionnaire to all local courts. All local courts should provide a Spanish version of the juror questionnaire upon request from any prospective juror. All local courts should also make arrangements to have court personnel available to provide an oral, Spanish translation of the juror questionnaire and to otherwise assist prospective NES jurors who cannot read Spanish.
E. Juror Orientation Materials
The AOC is responsible for distributing to all local courts copies of the Spanish version of jury orientation materials approved by the Supreme Court. To the extent that local courts may provide English language jury orientation materials to prospective jurors, those courts should also make arrangements to provide oral, Spanish translations when needed. Alternatively, courts are encouraged to produce written translations of juror orientation materials.
F. Jury Selection
All courts should make arrangements to have a court interpreter available for prospective NES jurors during the jury selection process. Upon arriving for jury selection, the court should introduce the court interpreter appointed to assist prospective NES jurors and advise prospective NES jurors that they should alert the interpreter if they have any questions during the process. The transcript of proceedings need not include the foreign language statements of the court interpreter or prospective NES juror, provided that the transcript clearly indicates when a court interpreter was used to interpret for a prospective NES juror.
Although a court interpreter may provide interpretation services for more than one prospective NES juror at a time, a court interpreter ordinarily should not be used to interpret for both a litigant and a prospective NES juror. However, when the litigant and his or her attorney can communicate in the same non-English language for confidential communications, the court interpreter may be used to otherwise interpret for both the litigant and the prospective NES juror. Subject to availability, courts are encouraged to avoid using the same court interpreter for jury selection and trial in the same case.
Prospective NES jurors are subject to peremptory challenges and challenges for cause the same as any other prospective juror. However, a prospective NES juror may not be challenged or excused simply because that juror is unable to read, write, or speak the English language. Moreover, the trial court should not excuse a prospective NES juror who asks to be excused simply because he or she cannot read, write, or speak the English language. Exercising its discretion in ruling on an objection to the service of any NES citizen, the court should consider all facts and circumstances pertaining to service by this juror, as the court would do in ruling on an objection to service by any citizen. In the event that a court interpreter will not be available to provide interpretation services for a prospective NES juror who would otherwise be selected to serve on the jury, the presiding judge may either postpone the proceedings until a court interpreter is available or excuse the juror from service for that proceeding only, provided that the prospective NES juror is recalled for jury selection for the next scheduled proceeding. If an interpreter cannot be obtained after reasonable effort, the prospective NES juror may be excused permanently.
G.Trial Proceedings
All courts should make arrangements to have a court interpreter available for all NES jurors during all trial proceedings. The transcript of proceedings need not include the foreign language statements of the court interpreter or the NES juror, provided that the transcript clearly indicates when a court interpreter was used to interpret for an NES juror. Although a court interpreter may provide interpretation services for more than one NES juror, a court interpreter ordinarily may not provide interpretation services for both a litigant and an NES juror or for a witness and an NES juror. However, when the litigant and his or her attorney can communicate in the same non-English language for confidential communications, the court interpreter may be used to otherwise interpret for the litigants, witnesses, other court participants, and NES jurors. Subject to availability, courts are encouraged to avoid using the same court interpreter for the trial and for jury deliberations.
H.Jury Deliberations
All courts should make arrangements to have a court interpreter available for all NES jurors during all jury deliberations. One court interpreter may provide interpretation services for more than one NES juror at a time during deliberations. To the extent that documentary exhibits are submitted to the jury for consideration during deliberations, the court interpreter assigned to assist NES jurors may provide an oral translation of the written material. With respect to jury instructions submitted to the jury, courts are encouraged to draft written, Spanish translations of the jury instructions with the assistance of a court interpreter. Alternatively, the court interpreter assigned to assist NES jurors during deliberations may provide an oral translation of the jury instructions.
III. Court Interpretation Standards for NES Jurors
When providing the court interpretation services to NES jurors and prospective jurors as outlined above, all courts should strive to meet the following standards:
A. Certification and Availability Standards
1.Certified
All courts should use certified court interpreters to assist NES jurors during all jury selection, trial, and deliberation proceedings. Certification is governed by the provisions of the Court Interpreters Act, NMSA 1978, §§ 38-10-1 to -8 (1985), as administered by the AOC. Except as otherwise provided below, an uncertified court interpreter should only be used if the requirements of NMSA 1978, Section 38-10-3(B) (1985), are met. In the event that a court must use an uncertified court interpreter, the court should consider briefly examining the uncertified court interpreter to establish the qualifications of the interpreter.
2. Uncertified
All courts may use uncertified court interpreters to assist NES jurors and prospective jurors in completing the juror questionnaire. Uncertified court interpreters may also be used during the jury orientation process.
3. Availability
All courts should maintain a list of locally available certified and uncertified court interpreters and submit an updated copy of that list to the AOC by May 1st of each year. For those courts that do not have an adequate number of locally available certified or uncertified court interpreters available to assist NES jurors and prospective jurors, the local court administrator or chief judge should coordinate with the AOC to compile a list of certified and uncertified court interpreters who are available from other areas. The AOC should also assist local courts in the training of local court personnel to assist NES jurors and prospective jurors with the juror questionnaire, jury orientation, and with questions arising outside the context of formal court proceedings.
B. Written Translation Standards
1. Qualification Materials
The AOC will provide all courts with a written, Spanish translation of the juror qualification form and questionnaire translated by a certified court interpreter.
2. Trial Materials
Written materials that are submitted to the jury for consideration during trial or jury deliberations should be orally translated by a certified court interpreter or translated in writing by a certified court interpreter. If a certified court interpreter is not available, the court may use an uncertified court interpreter to orally translate written materials if the requirements of Section 38-10-3(B) are met.
3.Machine Translation
A number of services are available on the Internet and elsewhere that provide free or low-cost translation of written materials from English into a number of other languages. Because machine translation may not be accurate, courts should not use machine translation for written materials that are to be used in formal court proceedings, such as jury instructions or documentary exhibits. Although courts may consider using machine translation for other informational and local orientation materials submitted to jurors and prospective jurors, all courts are cautioned against relying exclusively on machine translation without human verification of the accuracy of a machine translation.
C. Use and Performance Standards
Because of the demanding and sensitive nature of the services provided by court interpreters appointed to assist NES jurors and prospective jurors, all courts are encouraged to use and instruct court interpreters in accordance with the following standards.
1. Hours of Service
All courts should strive to limit the amount of time that a court interpreter interprets for an NES juror or prospective juror to avoid court interpreter fatigue. Ideally, two court interpreters should be used as a team to provide interpretation services, and each interpreter should avoid interpreting for more than 30-45 minutes without a rest period. Because this may not be logistically feasible in all circumstances, every court should remain sensitive to the risk of court interpreter fatigue. Whenever a court interpreter suspects that the quality of interpretation may become compromised because of fatigue, the interpreter should advise the trial court judge of the need for a period of rest.
2. Oath of Interpreter
Before a court interpreter begins to provide interpretation services for an NES juror or prospective juror during jury selection or trial, the trial judge should administer an oath to the court interpreter in accordance with NMSA 1978, Section 38-10-8 (1985).
3. Pre-Interpretation Interview
Prior to providing interpretation services for an NES juror or prospective juror, with the knowledge and permission of the court, the court interpreter should briefly interview the NES juror or prospective juror to enhance the effectiveness of the interpretation by becoming familiar with the speech patterns and linguistic traits of the NES juror or prospective juror.
4. Courtroom Explanation of the Role of the Interpreter
Prior to the commencement of proceedings, the trial court judge should explain the role of the court interpreter to those present in the courtroom by explaining that the interpreter was appointed by the court to assist jurors or prospective jurors who do not understand English. The judge should also explain to the jury that the interpreter is only allowed to interpret and that the jurors may not ask the interpreter for advice or other assistance. The judge should also explain that, for those English speaking jurors who may understand the non-English language spoken by the court interpreter, the jurors should disregard what they hear the interpreter say and rely solely on the evidence presented in English.
5. Pre-Deliberation Instructions
Prior to excusing the jury for deliberations, the trial judge should, on the record in the presence of the jury, instruct the court interpreter who will be providing interpretation services for an NES juror that the interpreter should not interfere with deliberations in any way by expressing any ideas, opinions, or observations that the interpreter may have during deliberations but should be strictly limited to interpreting the jury deliberations. The trial judge should also ask the court interpreter to affirmatively state on the record that the interpreter understands the trial judge’s instructions.
6. Post-Deliberation Instructions
Following jury deliberations but before the jury’s verdict is announced, the trial judge should ask the court interpreter on the record whether the interpreter abided by his or her oath to act strictly as an interpreter and not to participate in the deliberations. The interpreter’s identity and answers should be made a part of the record. At the request of a party to the litigation, the jurors may also be questioned to the same effect. The trial judge should also instruct the court interpreter not to reveal any aspect of the jury deliberations after the case is closed.
7. Equipment
With the assistance of the AOC, all courts should make arrangements to provide equipment for use by a court interpreter who will be providing interpretation services for NES jurors. The AOC will develop standards and seek funding to acquire adequate equipment for use by court interpreters throughout the state who will be providing interpretation services for NES jurors and prospective jurors. The equipment should allow interpreters to provide interpretation services for multiple persons with minimum disruption of the court proceedings.
To the extent that the AOC and local courts are unable to provide court interpreters with interpretation equipment, all court should assist court interpreters with the logistical arrangements for providing interpretation services whenever possible. Accordingly, prior to jury selection or trial proceedings, court personnel should identify the number of NES jurors or prospective jurors scheduled to appear in court. This information should be provided to the appointed court interpreter so that the interpreter can make arrangements for the appropriate equipment and seating arrangements. The interpreter should obtain the prior approval of the trial court if special equipment and seating arrangements are needed. The bailiff should inform counsel if any seating changes have been made to accommodate NES jurors or prospective jurors.
IV. COURT INTERPRETATION COSTS
A. Jury and Witness Pee Fund
All costs associated with administering these guidelines and providing services for NES jurors and prospective jurors should be paid from the Jury and Witness Fee Fund. To the extent that such costs are initially incurred at the local court level, local courts may seek reimbursement from the Jury and Witness Fee Fund.
B. Interpreters in Civil Cases
The costs for a court interpreter to provide interpretation services to an NES juror or prospective juror in civil eases should be paid by the court through the Jury and Witness Fee Fund.
C. Interpreter Compensation
Court interpreters appointed to provide interpretation services for NES jurors or prospective jurors should be paid at a fixed rate in accordance with the approved fee schedule established by the AOC. However, all courts are free to employ a certified interpreter on a full-time basis or under contract at a mutually agreed upon compensation rate.
V. COURT INTERPRETER RECRUITMENT AND TRAINING
A. Administration
The AOC is be responsible for the recruitment and training of court interpreters to provide interpretation services for NES jurors and prospective jurors. Consistent with the New Mexico Judicial Branch Personnel Rules, local court personnel are encouraged to train for and become certified as court interpreters.
B. Special Training
The AOC, in consultation with the Court Interpreters Advisory Committee, see NMSA 1978, § 38-10-4 (1985), will develop supplemental training standards for court interpreters who will provide interpretation services for NES jurors and prospective jurors. These standards should be incorporated into the general certification process for all new court interpreters.
EFFECTIVE DATE:
Guidelines are effective November 15, 2000
John M. Greacen
Director, Administrative Office of the Courts
Date