holding that the right to confrontation may be waived
How later courts described this case
- holding that the right to confrontation may be waived
- “[w]hen such condition arises, it becomes necessary for the court, in the exercise of his discretion, to make inquiry to ascertain whether accused rights would be safeguarded in the absence of an interpreter”
- “The Sixth Amendment to the Federal Constitution, as well as the Constitutions of most of the States, provides for confrontation in language not materially different to that of our State Constitution.”
- the generally accepted rule concerning whether an interpreter is necessary rests largely in the discretion of the trial court
Written by the judges who cited it.
The opinion
ON STATE’S motion for rehearing.
HAWKINS, Presiding Judge.
In our opinion on appellant’s motion for rehearing he is referred to as a “national of the Republic of Mexico.” In the State’s Motion for Rehearing our attention is directed to this expression as not supported by the record. We find upon a reexamination of the record that appellant’s status in the regard mentioned is not made known and the expression to the contrary has been deleted from our opinion on appellant’s motion for rehearing. We regard the matter as immaterial. The principle of law applicable would be the same whether appellant was a citizen of Texas or a national of another country.
It is agreed by the State and appellant that State v. Vasquez, 121 P. (2d) 903 , 140 A. L. R. 755, is the leading case upon the question under consideration. Our statement on appellant’s motion for rehearing that “The majority opinion (in said case) held that the action of the trial court was error” in refusing to furnish accused with an interpreter to translate the testi
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mony of the English-speaking witnesses is challenged. If we were in error in thinking the majority opinion in Vasquez’s case so held, then it appears that the publishers of the American Law Reports, Annotated, fell into the same error. The first paragraph introducing the opinion on page 755, 140 A. L. R. reads: “A request, on the trial of a charge of murder, that, on account of defendant’s
imperfect
knowledge of English, an interpreter should be provided to interpret the testimony for his benefit, should not be refused,
at least not without an investigation.”
(Italics ours.)
On page 767, same report, in annotating the Vasquez case, it is said: “In State v. Vasquez (Utah) (reported herewith) ante, 755, prosecution for murder, where accused, whose native tongue was Spanish and who stated that
he was unable to understand all that toas said in English,
was represented by counsel who did not understand Spanish, the appellate court stated that it was important that the trial court in the exercise of its discretion as to the necessity of an interpreter, either for the defendant or for a witness, be fully advised,
and it was held that the trial court erred in denying accused am interpreter without making some investigation to determine whether one was necessary.”
(Italics ours).
The court there was informed that accused was unable to understand some of the testimony, and could speak only broken English. Even under those circumstances, Judges Moffat and Larson held that the trial judge should have furnished an interpreter. Judge Wolfe held that no error was committed under the circumstances there present. Judge McDonough, in his opinion, sets out that counsel for accused stated to the court that accused “could not understand all the English that is being said, and he is handicapped,” and then stated: “I am of the opinion that the court should have at that point invited inquiry or have made such into the defendant’s ability to understand English-speaking witnesses.” Judge McDonough then expressed uncertainty in his own mind as to certain phases of the question, and concluded his discussion of the point in this language. “Nevertheless the court should have, in my opinion, invited an inquiry into the suggested handicap of defendant before proceeding.”
Judge Pratt concurred in the reversal of the judgment for the reasons given by Judge McDonough.
With the foregoing analysis of the four opinions in Vasquez’s case we are not inclined to think our statement as to
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what was the majority holding does serious violence to the record.
It will be noted that in Vasquez’s case it is shown that he could speak English brokenly, and could understand some English. So far as we can ascertain, the holdings of the various courts seem to be fairly uniform that when such condition arises it becomes necessary for the court, in the exercise of his discretion, to make inquiry to ascertain whether accused’s rights will be safeguarded in the absence of an interpreter. In the case now before us no such condition or situation was present. In the bill of exception bringing the question forward it is certified that appellant “does not speak or understand English” and therefore it was requested that an interpreter be furnished to translate into Spanish the testimony which was being given in English and that this was “necessary to the defendant’s proper understanding of the matters-being related.” No question is present as to the extent of appellant’s knowledge of English, hence no necessity of inquiry about the matter. It is plainly certified that he neither spoke nor understood the language in which evidence was being given.
Many phases of the question discussed have been considered in various cases annotated in the 140 A. L. R. (supra) and in other cases to which we have been referred which would demand consideration whenever presented, but as it here appears in the record our opinion on appellant’s motion for rehearing still reflects our best judgment.
The State’s motion for rehearing is overruled.