An April 2018 decision by the Massachusetts Appeals Court (Commonwealth v. Mihail Lujan) reveals once again what should be common sense – Make mistakes in language assistance and there will be consequences.
In Massachusetts, the Appeals Court ruled, a limited English proficient rape suspect’s statements to police could not be used against him in court because the police used the wrong language to interpret for him.
Moldovan vs. Russian
According to the Springfield Republic:
“The (police) interview can fairly be characterized as consisting largely of confusion, with each participant often unable to understand what the others were saying.
The court upheld a January 2016 decision by Hampden Superior Court Judge Tina S. Page in the case against Mihail Lujan, 31, whose primary language was Moldovan — not Russian. Page found Lujan’s Miranda rights were not properly administered, and the high court agreed.
The court found that West Springfield detective Matthew Mattina was sent to the Wingate Nursing home on March 27, 2013, where he was told Lujan was observed inappropriately touching a patient.
Mattina asked Lujan to come to the police department, where a college student intern was used to interpret.”
However, the college student interpreted in Russian, not Moldovan, the actual language of the suspect Lujan. This intern, the Court wrote, is “…a twenty-five year old college student who was interning with the police department. The intern, whose first language was Russian, was a native of Kazakhstan and had moved to the United States when he was eleven years old.”
Regrettably, the police in this case made what proved to be an unwarranted assumption about the suspect’s national origin. Describing this mistake, the Appeals Court provided a short history lesson about Moldova, the Soviet Union, and language.
“The defendant is from Moldova, and his native language is Moldovan, a Romance language. He came to the United States three years before the events at issue in this case and has acquired an extremely limited understanding of English. He cannot effectively express himself in English, nor is there any indication that he can read or write English. Moldova was part of the Soviet Union until 1991 and Russian (a Slavic language unrelated to Moldovan) was the official language during that time.
After Moldova declared independence from the Soviet Union, Romanian became its official language. The defendant (who was born in 1985) was a young child when the Soviet Union dissolved. However, he acquired some knowledge of Russian as a secondary language in the sense that he can understand and speak it to a degree. There is nothing to show that the defendant can read or write Russian.”
Police assumed that Lujan was Russian, the Appeals Court determined, since West Springfield has a large Russian-speaking population and the police department routinely asks civilians to serve as interpreters, which of course is an additional concern.
Using ad hoc, untrained interpreters whose skills and language abilities have not been assessed and who likely do not know about various interpreter standards and protocols is essentially a fool’s errand in many situations, as the Court reveals here. The Court concluded there were “numerous irregularities in the way the intern carried out his interpretative role.”
Say What?
Of course, the most significant “irregularity” was the intern’s using the wrong language to communicate with Lujan.
As the Court enumerated: “[Irregularities] included instances where the intern omitted or changed words, phrases, and even questions and answers; instances where the intern suggested words to the defendant that the defendant adopted to his detriment; instances where the intern asked his own questions; and instances where the intern resorted to pantomime and gestures in an attempt to explain Russian words to the defendant and to help understand what the defendant was trying to say. The judge concluded that the defendant was not effectively advised of his Miranda rights and that the defendant’s statement was not voluntary because much of the statement was not his,” therefore violating the rights of criminal suspects under the U.S. Constitution.
Miranda warnings, such as the right to an attorney, were not properly given to Lujan and were not explained in Moldovan. “Written Miranda warnings in Russian do not appear to have been shown to the defendant and, even if they had been, there is nothing to indicate that the defendant could read Russian. Police must recite Miranda warnings in a language, and in a manner, [that] an unlettered and unlearned defendant can understand,” the Court ruled in reciting textbook Constitutional law.
The Appeals Court further examined the intern’s conduct in attempting to interpret for Lujan. The Court found additional “irregularities.”
“The interview was not conducted in the defendant’s primary language. It was conducted in a language with which he had limited facility, through an untrained interpreter who did not confine himself to the task of accurately translating what the officers or the defendant said. The judge was on entirely solid ground when she concluded that, in these circumstances, the defendant’s statements were not ‘his.'”
The intern’s interpretation was irregular and unreliable. He often mistranslated questions and answers, supplied questions and answers of his own, led the defendant into making incriminating statements, and suggested words to the defendant to the defendant’s detriment…
We have counted approximately ten instances where the intern mistranslated the detectives’ question (or statement), eight instances where the intern asked a question other than the one the detective asked, twelve instances where the intern mistranslated the defendant’s answers, twenty-two instances where the intern either did not translate the defendant’s statement at all or did not translate it fully, thirty-three instances where the intern asked his own question, nine instances where the intern adds something to the defendant’s answer, sixteen instances where the intern suggests either a word or an answer to the defendant, and nine instances where the intern supplied an answer without hearing from the defendant,” the Appeals Court decided.
Conclusion
Looking to future cases, the Appeals Court expressed its concerns about what went wrong here. The judges admonished police and law enforcement agencies to get it right the next time by developing and adhering to appropriate, lawful procedures for legally compliant language assistance.
“[W]e are concerned by the absence of procedural safeguards or protocols governing the interpreting that occurred in this case. Much hinges on the reliability and the accuracy of the interpretation and on its admissibility. Law enforcement agencies, therefore, may well consider it in their best interest to develop such procedural protocols.”
**Read some of Bruce Adelson’s other blog posts to learn about more developments in language access law, and be sure to contact us if you’re interested in a consultation about your own organization’s compliance with federal language access law.
© Bruce L. Adelson 2018, special for Bromberg, All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney.
Mr. Adelson teaches cultural and civil rights awareness at Georgetown University School of Medicine in Washington, D.C.