We spend a lot of time talking about the circumstances under which organizations must provide interpreting services to their customers, patients, employees, and/or the public. But what about the flip side of the coin? What happens when an individual with English-language challenges does not want help from an interpreter? The ability to waive the right to an interpreter was a key issue in U.S. v. Henry, 888 F.3d 589, 2nd Cir. 2018.
Mark Henry ran an arms export business out of his home (legally). He bought some military technology used in rockets and missiles from an American distributor and exported them to a customer in Taiwan. It turned out the customer was buying on behalf of the Taiwanese military (not legal). He was charged with several violations of the Arms Export Control Act.
Mr. Henry is originally from China and his native language is Chinese Mandarin. Describing his English skills, his attorney said he spoke “good English,” but not “great English.” Mr. Henry used an interpreter throughout the entire case against him until it got to the trial. He believed that using an interpreter in front of the jury might prejudice the jury against him.
The Waiver and the Compromise
Because of his belief that the jury might be prejudiced against him, Mr. Henry asked to waive his right to an interpreter and rely solely on his own, limited English skills. The court refused this request, requiring that he use a Mandarin interpreter for all parts of the trial with one compromise: during his own testimony, Mr. Henry could testify in English with a Mandarin interpreter on hand to jump in and help out if needed. Notably, during his actual testimony, he did end up needing help from the interpreter several times. The jury found Mr. Henry guilty of violating, attempting to violate, and aiding and abetting the violation of the Arms Export Control Act.
Following his conviction, Mr. Henry appealed on several grounds, one of which was that the Court’s requirement that he use a Mandarin interpreter violated his rights under the Sixth Amendment and the Court Interpreters Act of 1978 (CIA). He argued that he had an “absolute right” to waive the use of an interpreter. Further, he argued, even if the right isn’t absolute, judge made a mistake (i.e., “abused his discretion”) in forcing him to use an interpreter at trial.
No Absolute Right to Waive Interpreting Assistance
The Sixth Amendment to the U.S. Constitution guarantees a criminal defendant the right to have a competent interpreter throughout a trial. Similarly, the CIA requires courts to use court interpreters when the judge determines that a defendant “speaks only or primarily a language other than English … so as to inhibit [the defendant’s] comprehension of the proceedings or communication with counsel or [the judge]…”
The CIA also gives defendants the right to waive using a court-appointed interpreter. To be effective, the waiver must be expressly made on the record after the opportunity to consult with counsel, after the judge has explained the “nature and effect of the waiver,” and is only effective if the judge approves.
After reviewing other court’s interpretations of the Sixth Amendment and the CIA, the Second Circuit Court ruled that there is no “absolute right” to waive an interpreter. Judges may require a defendant to use an interpreter, so long they carefully analyze whether denying the waiver is appropriate under the circumstances. The judge must weigh the defendant’s desire to waive against the need for an interpreter to safeguard the defendant’s right to a fair and speedy trial and the public’s right to a comprehensible trial.
The Judge Made the Right Call
The court next discussed whether the judge in Mr. Henry’s trial properly denied his waiver of interpreting services, with the compromise of allowing Mr. Henry to testify in English (with an interpreter on standby to assist, if needed). The court first noted that the judge delved deep into the facts and circumstances surrounding Mr. Henry’s English proficiency. He spoke both with Mr. Henry and his lawyer and looked at the history of the case.
Based on his investigation, the judge determined that Mr. Henry had a good working knowledge of English but had trouble with more technical language. Mr. Henry’s lawyer had to repeat more complex phrases to him during trial prep and did not think his client would understand some of the concepts raised during trial without an interpreter. Even Mr. Henry, himself, agreed that he might have trouble with technical terms during trial.
The judge then explored various options, like having the lawyer try to quietly explain difficult concepts as they came up during trial or only using an interpreter intermittently, as needed. However, this would cause delays and require witnesses to repeat previously given testimony to be interpreted every time Mr. Henry indicated he didn’t understand what had been said. As such, the judge decided to require the use of an interpreter, with the compromise of allowing Mr. Henry to testify in English.
Ultimately, the Second Circuit ruled that:
The District Court [judge] respected Henry’s desire to invoke his waiver and fashioned an appropriate compromise solution. … The District Court’s handling of this complex question was careful and thoughtful. It properly balanced Henry’s wishes against the need for the jury and the public to understand the defendant’s testimony, ensuring that he was afforded a fair trial.
The question of the “right” to waive interpreting services also comes up in other settings, such as healthcare. Patients sometimes want to waive the right to a professional, medical interpreter, paid for by the medical provider, and instead rely on a friend or family member to interpret. Just like judges, however, healthcare professionals must use their discretion and judgment to determine whether it is “appropriate under the circumstances” to use a friend/family member as an interpreter.  If it is not appropriate, they must provide a professional, medical interpreter, even over the patient’s objections.
 The right to a medical interpreter stems from many sources, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, Section 1557 of the Affordable Care Act and the Regulations implementing it, and various hospital and healthcare accreditation standards.
 The “appropriate under the circumstances” language comes from the Section 1557 regulations. 45 CFR 92.201(e)(ii). Section 1557 applies to all federally-funded healthcare providers, which includes providers who accept Medicare and/or Medicaid patients. As such, the regulations apply to nearly all healthcare providers.