Obstacles arise when interrogating non-English speakers

By: TERI FIGUEROA - Staff Writer | Saturday, January 22, 2005 10:17 PM PST ∞

The man was arrested in connection with a slaying. He spoke some English, but it wasn't his first language. The first time Escondido police questioned him, they were able to use a department officer who could speak to him in his native Vietnamese.

The second time police questioned Escondido murder suspect Vinh Pham, they asked a nurse at the jail to help them communicate with the man they'd arrested. She wasn't trained as a translator or an interrogator.

In Vietnamese, the nurse read Pham his rights. He consented to speak.

What followed were statements that ---- while potentially giving police more information on the slaying they were investigating ---- ended up as being inadmissible in court.

Halfway through the interrogation, Pham ---- whose murder trial is under way ---- said in Vietnamese, "I want to go back to jail," and "I don't want to say anymore."

The nurse didn't repeat the statements to police.

Superior Court Judge Marguerite Wagner, who is presiding over Pham's trial, ruled earlier this month that, by making that statement, Pham had invoked his right to silence, making the rest of the interrogation inadmissible in court.

Wagner tossed the second half of the interrogation. The jury won't hear the rest of the conversation, which the prosecutor had characterized in court documents as "crucial" to the case.

Prosecutors have other evidence they argue connects Pham to the shooting death of his sister-in-law's boyfriend, Johnny Nguyen.

That evidence includes a bullet found in the wall of Pham's home. Prosecutors allege the bullet came from the same gun that was used in killing Nguyen.

Testimony in Pham's murder trial began Tuesday and could run for the next few weeks.

Pham's case is an example of a hole in the system that, while it doesn't come up very often, could have the potential to make or break a case in court.

Police and others agree that the language barrier can be tough to overcome in interrogations. But there are no laws in place that govern when or if an interpreter should be brought in during interrogations ---- nor are their laws that govern the qualifications of the interpreter to whom police turn.

The key word is 'charged'

The California Constitution states that a person unable to understand English who is charged with a crime has the right to an interpreter throughout the proceedings.

The key word there is "charged," said Dan Segura, the public defender who at one time represented Pham in the pending murder case.

Segura said that the courts have generally ruled that a "charge" refers to the actual complaint filed by the prosecutors office, not to the arrest.

Segura said he'd like to see the requirement for interpreters be expanded to include interrogations. He also noted that the requirement, as it stands now, doesn't address the qualifications of the interpreter.

Police are taking a risk that the statements they elicit in interrogations won't be allowed in court on the grounds that the translator they tapped wasn't competent, he said.

"It's a matter for the court to say that the person did the translation appropriately and didn't deny due process," said Segura, who although he is no longer representing Pham, declined to speak in detail about Pham's case.

No laws, just precedent

Under the statutes, police have to inform people why they are being arrested. Generally, they must also present that person to a magistrate within 48 hours, excluding Sundays and holidays, according to the California Penal Code.

Even if the person under arrest didn't understand a word the police said, the arrest is still lawful, said Deputy District Attorney Robert Phillips, who serves as the conduit from the prosecutors office to some of the area's law enforcement agencies.

When it comes to language barriers in the area of interrogations, any guidelines that may exist are essentially the decisions judges have made in previous cases.

Phillips said he advises police to err on the side of caution and tells them that if they aren't completely fluent in the same language the suspect speaks, bring in someone who is. Ideally, he said, that someone would be another officer or a civilian law enforcement employee or a professional interpreter, someone who would recognize more than a layperson the significance of what the suspect may be saying.

Interrogations take skill

Interrogations ---- which are designed to elicit incriminating statements from a suspect and require police to advise a suspect of his rights, including the right to silence ---- require a tactical approach and a lot of skill.

"You lose a lot" when going through an interpreter in interrogations, said Sgt. Gary Haigh of the San Diego County Sheriff's Department's homicide detail.

Not only are certain words and phrases not easily translatable, there's also a lot of nuance in the answers that gets lost, Haigh said.

That's why, he said, when homicide interrogations involve native Spanish speakers, the office tries to steer the case to its bilingual homicide detective ---- the only one of the 12 detectives on staff.

Spanish is far and away the most common foreign language that officers encounter, and also the easiest for which to find people able to interpret. Outside of Spanish, area police said, problems with a language barrier don't crop up all that often.

Phone-in interpreters

When language situations arise with witnesses, area police say they sometimes use a phone-in interpreter service to talk to witnesses and gather information.

Oceanside police Sgt. Leonard Mata said generally, officers in his department don't use it when it comes to notifying a person of their rights ---- often referred to as Miranda rights.

"That's a sticky situation," Mata said. "There's way too many variables here. Chances are we'd (arrest) them and deal with the interviews later."

Lt. Dave Mankin of the Escondido Police Department said it is rare that they can't find someone, often a department employee, who can serve as an interpreter ---- including in sign language.

"We always try to use somebody that we think is going to be a reliable translator," Mankin said, noting that there are times when they don't know if the person they have tapped to assist is reliable as an interpreter or not.

Qualifications for certification

Anyone who speaks two languages fluently is an interpreter, said Ariel Torrone, a representative for the Communication Workers of America, a union that represents interpreters.

It's the certification, he said, that sets people apart. Getting certified is difficult, and often it takes more than one attempt to pass the state test, which requires 70 percent accuracy.

Torrone notes that even in one language, it can be tough to repeat everything that a person says as they are saying it, with a few seconds lag time. Then add to that the need to translate it to another language. It's not easy.

Public defender Segura noted that the problem isn't always verbatim translation, but rather finding a way to get across a concept to the suspect.

Take the word "right," as in "you have the right to remain silent." On occasion, the cultures and societies from which some suspects come may not have words that translate the concept of a "right."

"If you say 'ability' to remain silent, they say 'So what?' " Segura said. "Ability? Obligation? Permission? Which is the exact word that translates that? Right is an idea, not something with a concrete definition."

Contact staff writer Teri Figueroa at (760) 740-3517 or tfigueroa@nctimes.com.