¶22 (concurring) — I agree with the lead opinion that Zahid Khan has made a preliminary factual showing that warrants a reference hearing, but I write separately to emphasize the fundamental nature of the right to an interpreter.
¶23 The right to effective assistance of counsel and due process protections afford criminal defendants a constitutional right to an interpreter. We have long recognized that to proceed without an interpreter renders a trial “a meaningless ceremony, and the prisoner [would be] tried in violation of the laws and constitution of the land.” Elick v. Wash. Territory, 1 Wash. Terr. 137, 140 (1861). More, recently, we have held that “the right of a defendant in a criminal case to have an interpreter is based upon the Sixth Amendment constitutional right to confront witnesses, and The right inherent in a fair trial to be present at one’s own trial.’ ” State v. Gonzales-Morales, 138 Wn.2d 374, 379, 979 *695P.2d 826 (1999) (quoting State v. Woo Won Choi, 55 Wn. App. 895, 901, 781 P.2d 505 (1989) (relying on Const, amend. VI)); see also United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2d Cir. 1970). The legislature has also recognized this right and declared it to be a public policy “to secure the rights, constitutional or otherwise, of persons who, because of a non-English-speaking cultural background, are unable to readily understand or communicate in the English language, and who consequently cannot be fully protected in legal proceedings unless qualified interpreters are available to assist them.” RCW 2.43.010. Finally, we have authorized access to this right in a court rule. GR 11.
¶24 A defendant cannot waive the right unless he does so knowingly, voluntarily, and intelligently. RCW 2.43.060(l)(b). There is no question Khan had a constitutional and statutory right to an interpreter—a right that he did not waive and a right that his attorney could not waive for him, even under the guise of trial strategy. Khan’s trial occurred without his full understanding of the proceedings. The trial record is replete with examples of his struggle to understand and respond to questions, which goes to the very core of a fair, public trial.
¶25 While we do not accept Khan’s invitation to presume prejudice and to treat his counsel’s decision to forgo the services of an interpreter as structural error in this case, our jurisprudence continues to evolve. There may come a time where we hold that the lack of a language interpreter in a criminal proceeding constitutes such an error because if an essential interpreter is not provided, “ ‘the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.’ ” In re Pers. Restraint of Davis, 152 Wn.2d 647, 674, 101 P.3d 1 (2004) (internal quotation marks omitted) (quoting Visciotti v. Woodford, 288 F.3d 1097, 1106 (9th Cir.), rev’d on other grounds, 537 U.S. 19, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002)); see also In re Pers. *696Restraint of Stockwell, 179 Wn.2d 588, 608-09, 316 P.3d 1007 (2014) (Gordon McCloud, J., concurring) (citing cases where we have reversed on collateral review without a showing of prejudice). The growing diversity of our population will no doubt require judges to assume an affirmative role in ensuring that individual litigants fully understand the proceedings.
¶26 The nature of the rights at .issue—the right to understand the charges, the right to confront witnesses, and the right to participate in a meaningful way at one’s own trial—are basic trial rights. Being haled into court to face proceedings that one cannot understand or participate in without an interpreter jeopardizes fundamental due process. Justice demands more, and Washington law requires it.