State v A.M.
STATE OF NEW JERSEY, Plaintiff-Respondent, v.
A.M., Defendant-Appellant.
DOCKET NO. A-2090-13T2
Decided: January 23,
2018
Before
Judges Fuentes, Carroll and Gooden Brown (Judge Fuentes concurring).Jane M.
Personette, attorney for appellant. Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Suzanne E. Cevasco, Assistant Prosecutor, of counsel
and on the brief).
A Bergen County grand jury
indicted defendant A.M., charging him with first degree aggravated sexual
assault, N.J.S.A. 2C:14-2(a)(2)(a), second degree sexual assault, N.J.S.A.
2C:14-2(c)(4), two counts of third degree criminal sexual contact, N.J.S.A. 2C:14-3(a),
and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The
victim was defendant's step-granddaughter, who was fourteen years old at the
time.
The trial court denied
defendant's motion to suppress an inculpatory statement he made while being
interrogated by detectives from the Bergen County Prosecutor's Office (BCPO)
and the Bergenfield Police Department. Defendant thereafter pled guilty to second
degree sexual assault, N.J.S.A. 2C:14-2(c)(4). Pursuant to the plea agreement,
the State dismissed the remaining counts in the indictment and the court
sentenced defendant to a term of six years, with an eighty-five percent period
of parole ineligibility and three years of parole supervision, pursuant to the
No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant also reserved the right to
appeal the denial of his motion to suppress the inculpatory statement.
After reviewing the record
developed before the motion judge and mindful of our standard of review, we
reverse the trial court's order denying defendant's motion to suppress his
inculpatory statement. The evidence presented by the State at the N.J.R.E.
104(c) hearing does not support the motion judge's findings that the State
satisfied “the heavy burden” of proving, beyond a reasonable doubt, that
defendant made a knowing, intelligent, and voluntary decision to waive his
constitutional rights under Miranda.1 See
State v. Presha, 163 N.J. 304, 313 (2000). The motion judge's decision
upholding the methods used by the interrogating detectives improperly shifted
this burden of proof to defendant.
I
Bergenfield Police Detective Richard Ramos was the only witness
who testified at the N.J.R.E. 104(c)2 hearing
to adjudicate defendant's motion to suppress. The interrogation took place on
July 24, 2011, at the Bergenfield Police Headquarters. Because defendant's
dominant language was Spanish, Detective Ramos, who was then a police officer,
acted as defendant's interpreter. Ramos testified that the interrogation was
conducted using a “combination” of English and Spanish. When the prosecutor
asked Ramos to provide the motion judge “with a little bit of an idea of [his]
background in the Spanish language[,]” Ramos responded:
I
grew up in a Spanish [speaking] household. Spanish was my first language spoken
at home. I did study Spanish in high school, a couple courses and also in
college.
Q.
Have you been called upon by your police department in your capacity as a
police officer to either help translate statements made in Spanish by witnesses
or defendants or to provide a translation of Miranda rights in Spanish ever
before?
A.
Yes.
Q.
And so your department has asked you to do this kind of thing before?
A.
Yes.
Q.
Again, how would you characterize roughly the number of times you've been
called upon, rarely, often?
A.
Often.
The
appellate record includes both a video recording of the interrogation and a
transcript of the questions and answers. The record shows that BCPO Detective
Brian Lucas and Bergenfield Police Detective Robert Boria were the two
principal interrogators. Officer Ramos's role was limited to acting as an
interpreter when necessary. The following colloquy captured how the
interrogation was conducted.
DETECTIVE
LUCAS: [N]ow, my understanding is that you ․
speak English, but you're most comfortable in Spanish?
DEFENDANT:
In Spanish.
DETECTIVE
LUCAS: Is that correct? Have you understood everything that I am saying so far,
․
where ․ I
work and my name and everything?
DEFENDANT:
Yeah.
DETECTIVE
LUCAS: Okay ․
this is Detective Robert Boria. He works for the Bergenfield Police Department
and this is Officer Rich Ramos. Right?
OFFICER
RAMOS: Yep.
DETECTIVE
LUCAS: He also works here for Bergenfield and what he's going to do, he's
[going to] help us out if you don't understand anything in English, he's [going
to] be able to step in and ․
speak to you in Spanish.
DEFENDANT:
Okay.
From
this point forward, the video recording shows that Officer Ramos interpreted
Detective Lucas's questions to defendant from English into Spanish and
defendant's answers from Spanish into English. After asking defendant a series
of questions concerning his age, place of residence, and immigration status,3 Detective Lucas gave defendant a Miranda
rights waiver form written in Spanish. Lucas then gave defendant the following
explanation of the significance of the form.
DETECTIVE LUCAS: All right. What I have here is,
uh, your [Miranda] Rights. Do you understand what those are?
DEFENDANT: Uh-
DETECTIVE LUCAS: Okay. What these are, these
are, these tell you what, uh, these, basically, the guidelines of ․ us talking to one another. Okay? These are
going to tell you what, what your rights are, and you have the right to an
attorney, and, uh, speaking with us is voluntary. Okay? Do you understand that,
what I've said so far?
DEFENDANT: Um, yeah.
DETECTIVE LUCAS: Okay. This form I have, I have
one of these in English, but you said you're most comfortable in Spanish, so-
DEFENDANT: In Spanish.
․
DETECTIVE LUCAS: So, rather than me read it,
what I'm going to ask, uh, [O]fficer Ramos to do, is if he can read you your
rights in Spanish.
[Emphasis added.]
The video recording shows Officer Ramos reading
in Spanish the Miranda rights and waiver form. However, the transcript of this
part of the video recording is written in English. According to the transcript,
after Officer Ramos completes reading aloud the list of Miranda rights, he
purportedly tells defendant to write his name and sign the waiver form. The
cover page of the transcript of the video record shows it was prepared by
Evelyn Mosquera, Clerk Typist, BCPO. Mosquera did not sign the transcript document
or certify that it was a true and accurate translation of the audio part of the
video record. The record does not contain any evidence attesting that Mosquera
received any training or had any experience translating audio records.
The only indication of the accuracy and
reliability of the transcript is in Officer Ramos's testimony at the
evidentiary hearing.
Q. Now, when you reviewed the videotape, were
you able to compare a transcript of the discussion on the videotape with what
was said on the videotape?
A. Yes.
Q. And to the best of your ability does the
transcript adequately reflect what was said in the video?
A. Yes.
This line of questions concerning Officer
Ramos's competency to interpret continued on cross-examination.
Q․ You said that you have some familiarity with
the Spanish language, correct?
A. Yes.
Q. Have you ever taken a test to officially
translate?
A. No.
Q. So, for example, like we have two court
interpreters here that have taken tests employed by the State. Have you ever
done a proficiency test like that?
A. No.
Q. Have you ever written anything like a police
report or a letter, anything in Spanish?
A. No.
Q. Have you ever been called to translate a
document, for example, let's say somebody sends you a police report from a
Spanish speaking country or Spanish statement, has anybody ever called you to
do that?
A. Yes.
Q. When have they called you to do that?
A. As far as my regular patrol to translate
statements.
Q. But I'm saying like an official document.
Would you feel comfortable, let's say, if I gave you a Spanish book, like a
novel, would you be comfortable translating that word for word?
A. To the best of my ability, yeah.
Q. Have you ever done that like in an official
capacity, listened to a statement and typed it out in English?
A. No.
Q. Have you ever testified as an interpreter
before?
A. No.
The video record shows defendant appearing to
read to himself the waiver part of the Miranda form that was written in
Spanish. Officer Ramos acknowledged that he did not read the waiver paragraph
in the Miranda form to defendant. Officer Ramos pointed to the sections in the
waiver form and told defendant: “Write your name in the line -, complete. And
you have to sign here, the line is not there, but you have to sign.”
Officer Ramos also testified that he paraphrased
many of defendant's answers to questions dealing directly with defendant's
alleged sexually inappropriate interactions with the victim. By way of example,
during the interrogation defendant was asked about an incident in which he
allegedly asked the victim to model a swimsuit. Defense counsel quoted the
following colloquy that Ramos translated during the interrogation:
“OFFICER RAMOS: ․ now, tell me about the thing with the bathing
suit?
[DEFENDANT]: So then, she says no, yes it fits
me. Okay. I told her that's fine, so then I'm going to tell your grandmother
to, to buy you one. So then I came hug her and she turned around and I grabbed
her like this and that's when she says that I touched her chest.”
DEFENSE COUNSEL: Do you recall that section?
OFFICER RAMOS: Yes.
DEFENSE COUNSEL: And then here you're
translating for the officers and your translation of that says,
“OFFICER RAMOS: He's saying that she tried it on
and she said yeah it, it doesn't fit so that's when he said okay I'll tell your
grandmother to buy you another bathing suit and that's when he went to hug
her.”
Do you recall that?
OFFICER RAMOS: Yes.
DEFENSE COUNSEL: Is that a translation of [what
the defendant] actually said?
THE COURT: Is that verbatim or did you
paraphrase it?
OFFICER RAMOS: Paraphrased it.
THE COURT: That happened several times during
the transcript, is that correct?
OFFICER RAMOS: Yes.
DEFENSE COUNSEL: For example, here when he's
saying that she says “no, yes it fits me” you translated that as “Yeah, it
doesn't fit”?
OFFICER RAMOS: I must have misheard what he
said.
When asked by defense counsel whether he had any
discussion with the detectives or with defendant about whether he was required
to translate verbatim or paraphrase “what anyone was saying,” Officer Ramos
answered: “․ I would try to translate as best as possible.”
Against this record, the motion judge denied
defendant's motion to suppress. After quoting the English version of the
Miranda waiver form, a document defendant did not read because it was not
provided to him by the detectives who interrogated him, the judge found
“defendant wrote his name in the space provided and further signed his name
below the paragraph to indicate that he had both read and attested to the same.”
With respect to Officer Ramos's failure to read the Miranda waiver aloud, the
judge found: “[I]t is clear from reviewing the video tape that defendant was
given an opportunity to read the waiver paragraph and signed the waiver
portion, and did in fact review the waiver portion before signing it.”
The motion judge found the video record showed
that defendant appeared “alert and cognizant while the [Miranda] form [was]
explained to him and while he signed the form, stopping the officers on
multiple occasions to ask questions, repeatedly acknowledging his comprehension
of the process, and correcting the officers when they misunderstood what he
[had] said.” Ultimately, the judge found it was defendant's duty to inform the
detectives if he “had any problems reading the waiver portion of the [Miranda]
form, written in Spanish as he had requested[.]” Based on these findings, the
judge concluded that “[n]othing in the record suggests that the waiver was made
under duress, coercion or intimidation.” Furthermore, defendant “has put forth
no credible evidence of specific police misconduct which would render the
statements involuntary.”
II
Defendant now appeals raising the following
arguments.
POINT ONE
THE COURT BELOW ERRED IN FAILING TO SUPPRESS
DEFENDANT'S STATEMENT BASED UPON CLEAR VIOLATIONS OF MIRANDA V. ARIZONA.
a. General legal principles.
b. The Court below erred in finding that there
had been a valid waiver by [A.M.] of his [Miranda] rights.
c. The Court below erred in determining that the
questioning of [A.M.] at his home did not violate Defendant's Fifth Amendment
protections and did not taint the subsequent statement.
d. The Court below erred in finding that
Defendant was not denied due process and equal protection based upon the wildly
inaccurate translation that occurred during the interrogation.
e. The Court below erred in finding that the
presence in the interview room of a gun, pepper-spray and handcuffs did not
create a coercive environment sufficient to warrant suppression of [A.M.'s]
statement.
Our Supreme Court recently reaffirmed that
“[t]he right against self-incrimination is guaranteed by the Fifth Amendment to
the United States Constitution and this state's common law, now embodied in
statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503.” State v. S.S.,
229 N.J. 360, 381-82 (2017) (quoting State v. Nyhammer, 197 N.J. 383 (2009)).
Furthermore, in determining whether incriminating statements are admissible,
the State must “prove beyond a reasonable doubt that the suspect's waiver [of rights]
was knowing, intelligent, and voluntary[.]” State v. Yohnnson, 204 N.J. 43, 59
(2009) (quoting Presha, 163 N.J. at 313). A reviewing court must determine
whether the State has satisfied this “heavy burden” of proof, State v. Hartley,
103 N.J. 252, 260 (1986) (quoting Miranda, 384 U.S. at 444), based upon an
evaluation of the “totality of the circumstances[.]” Nyhammer, 197 N.J. at 402.
A “totality-of-the-circumstances” analysis
requires the motion judge to consider such factors as a defendant's “age, education
and intelligence, advice as to constitutional rights, length of detention,
whether the questioning was repeated and prolonged in nature and whether
physical punishment or mental exhaustion was involved.” Ibid. (quoting Presha,
163 N.J. at 313). The Court in S.S. also clarified our standard of review in
cases such as this, where the motion judge's factual findings in support of his
decision to deny or grant a motion to suppress a defendant's inculpatory
statement are based on both: (1) the video record of the defendant's
interrogation; and (2) the live testimony of a law enforcement agent who was
involved in the interrogation, stating:
Generally, on appellate review, a trial court's
factual findings in support of granting or denying a motion to suppress must be
upheld when “those findings are supported by sufficient credible evidence in
the record.” In the typical scenario of a hearing with live testimony,
appellate courts defer to the trial court's factual findings because the trial
court has the “opportunity to hear and see the witnesses and to have the 'feel'
of the case, which a reviewing court cannot enjoy.”
We have cautioned that a trial court's factual
findings should not be overturned merely because an appellate court disagrees
with the inferences drawn and the evidence accepted by the trial court or
because it would have reached a different conclusion. An appellate court should
not disturb a trial court's factual findings unless those findings are “so
clearly mistaken that the interests of justice demand intervention and
correction.”
[S.S. 229 N.J. at 374 (internal citations
omitted).]
Of particular relevance here, the Court in S.S.
also decided to reexamine and ultimately reverse its holding in State v.
Diaz-Bridges, 208 N.J. 544, 565-66 (2011), that permitted reviewing appellate
courts not to give any deference “to another court's factual findings based
solely on a video-recorded interrogation.” S.S. 229 N.J. at 375. In rejecting
the de novo approach it endorsed in Diaz-Bridges, the Court concluded “that a
standard of deference to a trial court's fact[-]findings, even fact[-]findings
based solely on video or documentary evidence, best advances the interests of
justice in a judicial system that assigns different roles to trial courts and
appellate courts.” Id. at 379. However, the Court also reaffirmed an equally
important countervailing principle of appellate jurisprudence: “Because legal
issues do not implicate the fact-finding expertise of the trial courts,
appellate courts construe the Constitution, statutes, and common law 'de novo
-- with fresh eyes -- owing no deference to the interpretive conclusions' of
trial courts [.]” Id. at 380 (quoting State v. Morrison, 227 N.J. 295, 308
(2016)).
Thus, our review is limited to determining
whether the motion judge's factual findings are supported by sufficient
credible evidence in the record. We engage in this undertaking mindful that the
judge had the opportunity to hear Detective Ramos's testimony, observe his
demeanor, and acquire a “feel of the case” which, as a reviewing court, we
cannot enjoy. We will also apply the same deferential standard of review to the
findings the judge made based on his observation of the video recording of
defendant's interrogation.
However, we will review de novo the constitutional
implications of these facts. As framed by the motion judge in his memorandum of
opinion: “The critical issue is whether defendant voluntarily, knowingly, and
intelligently waived his Miranda rights.” The judge concluded that the totality
of the circumstances showed “defendant's waiver was valid.” We disagree. The
judge found that “[n]othing in the record suggests that the waiver was made
under duress, coercion or intimidation.” We agree. The critical flaw in the
manner the State procured defendant's “waiver” is not based on “police
misconduct” but on the failure of the State to prove, beyond a reasonable
doubt, that defendant made a “knowing and informed” decision to waive his Fifth
Amendment rights.
The audio-video record of the interrogation shows
that Officer Ramos read aloud the section in the Spanish version of the BCPO
Miranda-rights form the rights 4 the
Supreme Court described in Miranda, and asked defendant to write “Si” in the
line provided next to: “Do you understand?” The video also shows Officer Ramos
did not continue to read aloud the section in the form that contains the waiver
provision. The motion judge found:
In response to this [waiver] paragraph,
defendant wrote his name in the space provided and further signed his name
below the paragraph to indicate that he had both read and attested to the same.
Although Detective Ramos acknowledged at the Miranda hearing that he did not
read the waiver portion of the form aloud, it is clear from reviewing the video
tape that defendant was given an opportunity to read the waiver paragraph and
signed the waiver portion, and did in fact review the waiver portion before
signing it.
[Emphasis added.]
On cross-examination at the N.J.R.E. 104(c)
hearing, Detective Ramos conceded that he: (1) did not ask defendant about his
level of education; (2) did not make any efforts to determine whether defendant
was literate in Spanish; (3) did not ask defendant to read the waiver provision
out loud to create a video record of what defendant actually read; and (4) did
not mention the word “waiver” or any other word or phrase that has the same or
similar meaning. He merely told defendant “to sign this [and] put his name in
there [.]” The motion judge did not address any of these omissions. On the
contrary, the judge stated: “If defendant had any problems reading the waiver
portion of the form, written in Spanish as he had requested, it is clear to
this court that he would have voiced such difficulty.”
The judge's analysis improperly shifts the
burden of proof to defendant to alert the interrogating officers about any
difficulty he may be having understanding the ramifications of a legal waiver.
This reveals a fundamental misunderstanding of the legal principles governing a
motion to suppress under Miranda. It is the State's “heavy burden” to prove
beyond a reasonable doubt that defendant's waiver of rights was knowing,
intelligent, and voluntary. Yohnnson, 204 N.J. at 59. A
“totality-of-the-circumstances” analysis provides additional grounds for
rejecting the motion judge's conclusion. The judge failed to consider the
State's failure to present any evidence of defendant's educational background.
Instead, the judge assumed that defendant was literate in Spanish without a
proper evidential foundation.
This case also illustrates the difference
between knowing a foreign language and being able to accurately and competently
interpret the critically important words spoken by a witness in the course of
an interrogation. In response to the motion judge's questions, Officer Ramos
conceded that he merely “paraphrased” defendant's statements. Officer Ramos
candidly admitted that he: (1) has never tested to determine his ability to
translate or assess his proficiency in Spanish; (2) has never written a police
report or a letter in Spanish; (3) had never before been asked to interpret a
Miranda interrogation; and (4) had never interpreted in a judicial proceeding.
With respect to the video record, the
transcription of the interrogation was prepared by a “clerk typist” employed by
the BCPO. The record presented to the motion judge does not contain any
information concerning this person's qualifications in translation. The mere fact
of having a Hispanic last name does not create a rational basis to infer
anything about a person's linguistic abilities. Finally, and equally as
important, both Officer Ramos and Ms. Mosquera, the clerk typist, are law
enforcement employees. Neither is an impartial participant.
Officer Ramos's admitted shortcomings in the
manner he “interpreted” defendant's answers, together with his status as a
police officer, are factors that should have been considered by the motion
judge in determining whether, under the “totality-of-the-circumstances,” the
State proved beyond a reasonable doubt that defendant knowingly and
intelligently waived his rights under Miranda.
Based on the record developed before the motion
judge, we conclude the State did not prove, beyond a reasonable doubt, that
defendant knowingly and intelligently waived his rights under Miranda. We
therefore reverse the order of the trial court denying defendant's motion to
suppress the incriminating statement he made on July 24, 2011. We remand for such
further proceedings as may be warranted.
Reversed and remanded. We do not retain
jurisdiction.
I write separately to express my views on what I
believe are the inherent constitutional flaws associated with relying on
untrained, presumptively partial police officers to act as interpreters during
custodial interrogations of limited English proficient suspects. In my view,
Detective Ramos's role as defendant's interpreter cast a shadow of
unreliability over the interrogation and added an independent factor to
question the efficacy of defendant's waiver, as well as the accuracy of his
alleged incriminating statements. The magnitude of this problem is revealed by
reviewing the role interpreters play in our criminal justice system.
Before an individual may act as an interpreter
in a judicial proceeding, the judge is obligated to “determine the
qualifications of a person testifying as an interpreter. An interpreter shall
be subject to all provisions of these rules relating to witnesses and shall
take an oath or make an affirmation or declaration to interpret accurately.”
N.J.R.E. 604. Pursuant to Rule 1:14, the Supreme Court adopted a Code of
Professional Conduct for Interpreters, Transliterators,1 and Translators (the Code), which
characterizes “[i]nterpreters, transliterators, and translators as highly
skilled professionals who fulfill an essential role in the administration of
justice.” Code of Professional Conduct for Interpreters, Transliterators, and
Translators, Pressler & Verniero, Current N.J. Court Rules, Appendix to
Part I at 598 (2018) (emphasis added). Pursuant to these Canons of ethical
conduct, interpreters are required to “faithfully and accurately reproduce in
the target language the closest natural equivalent of the source-language
message without embellishment, omission, or explanation.” Ibid. Interpreters
are required to “be impartial and avoid any appearance of bias or favoritism.”
Id. at 599. In short, it is now generally accepted that interpreters are viewed
by the judiciary as “something potentially indispensable to the discharge of
justice rather than some frivolous, burdensome, or evasive machination.” State
v. Rodriguez, 294 N.J. Super. 129, 139 (Law Div. 1996).
Twenty-three
years ago, our Supreme Court acknowledged “[t]he problem of communicating
Miranda rights to non-English-speaking defendants is important, particularly in
a state with so diverse a population.” State v. Mejia, 141 N.J. 475, 503
(1995). Thus,
[t]o
assist local law-enforcement officers in meeting their constitutional
obligation, the Attorney General should develop appropriate bilingual Miranda
warnings. In making that recommendation, we recognize that law-enforcement officials
cannot print Miranda warnings for all linguistic minorities. But that should
not prevent the State from preparing cards for the larger segments of the
non-English speaking population.
[Ibid.]
As
this case illustrates, the Attorney General heeded the Court's call to action
by providing our State's law enforcement community with a Spanish-version of
the uniform Miranda rights and waiver form. This is the form the BCPO utilized
here. However, the question here is not whether defendant was provided with the
proper Miranda waiver form. The issue here is whether defendant's signature on
the waiver section of the form constitutes sufficient evidence to establish,
beyond a reasonable doubt and under the totality of the circumstances, that
defendant made a knowing, informed decision to waive his rights under Miranda.
In
State v. Marquez, 202 N.J. 485, 512 (2009), the Court addressed a different
aspect of Mejia's legacy. In Marquez, a motorist who spoke only Spanish was
convicted of refusing to submit to a breath test to determine his blood alcohol
content (BAC), in violation of N.J.S.A. 39:4-50.4a. Writing for the Court,
Chief Justice Rabner described the police officer's “good faith, but surreal,
effort to inform [the] defendant of the consequences of refusing to submit to a
breath test,” by “read[ing] aloud a detailed, eleven-paragraph, standard
statement--all in English.” Marquez, 202 N.J. at 489. Despite not understanding
anything that was read to him, the defendant was convicted “of refusing to
submit to a breath test both in municipal court and on de novo review at the
trial court, and his conviction was affirmed by the Appellate Division.” Id. at
490.
The
Court reversed the defendant's conviction, holding that the “reading of the
standard statement to [the defendant] in English failed to 'inform' [the]
defendant of the consequences of refusal, as required.” Id. at 514. As Justice
Pollock noted fifteen years earlier in Mejia, Chief Justice Rabner recognized
in Marquez that:
[m]any
different languages are spoken in our State. According to statistics for the
court year 2007-08, 87,766 court events required translation services in 81
languages. However, the vast majority of cases involved a limited number of
languages. Spanish translations, for example, accounted for 74,762, or about
85%, of the translated sessions.
[Id.
at 510 (internal citations omitted).]
Today,
the judiciary's website includes a Language Services Section (LSS) designed to
support “the Judiciary's goal of ensuring that persons who are Limited English
Proficient (LEP) or who are deaf or hard of hearing have equal access to court
proceedings, programs and services.”2 The
LSS is replete with information describing a variety of resources that make
professionally trained and duly certified interpreting and translation services
accessible and available statewide in a plethora of languages. These services
keep the doors of our courthouses open to all without compromising the
integrity and impartiality of the judicial process. Modern technological
advancements make these resources practically and readily accessible to local
police departments throughout our State. Municipal courts are already the
beneficiary of these services.
The Canons of ethical conduct for interpreters adopted by the
Supreme Court make clear that the manner in which an interpreter carries out
his or her duties directly affects the integrity of the process. These ethical
standards require interpreters used by the judiciary to be completely neutral
and without interest of any stripe in the outcome of the proceedings. See In
Interest of R.R., 79 N.J. 97, 118 (1979).
I have engaged in this discussion to highlight the role
professionally trained, impartial interpreters play in the judiciary's mission
to “provide equal access to a fair and effective system of justice for all
without excess cost, inconvenience, or delay, with sensitivity to an
increasingly diverse society.”3 I
recognize that under our tripartite system of government, the judiciary does
not have the authority to dictate policy or establish protocols that mandate
law enforcement agencies to use professionally trained interpreters whenever
they interrogate a limited English proficient suspect. However, the deferential
approach to the prerogatives of the Executive Branch the Supreme Court adopted
in Marquez concerning the enforcement challenges posed by N.J.S.A. 39:4-50.4a
exemplifies the approach I believe should be followed here:
Many different languages
are spoken in our State.
․
The executive branch, and
not the courts, is best-equipped to respond to those concerns and still satisfy
the statutory command to “inform ․
motorists of the consequences of refus[al].” N.J.S.A. 39:4-50.2(e). We defer to
the executive branch agency, specifically, to the chief administrator of the
MVC, to fashion a proper remedy with the assistance of the Attorney General.
[Marquez, 202 N.J. at
510-11.]
Thus, it is up to the
Attorney General to develop appropriate guidelines to assist county prosecutors
and municipal police departments on how to interrogate limited English
proficient suspects to avoid the constitutional pitfalls identified in this
case. Until this issue is addressed in a uniform manner befitting its
importance, the constitutional right against self-incrimination of limited
English proficient suspects remains dependent on how well untrained,
presumptively partial individuals interpret the interrogators' questions and
the suspects' responses.
FOOTNOTES
2. N.J.R.E.
104(c) provides in pertinent part:Where by virtue of any rule of law a judge is
required in a criminal action to make a preliminary determination as to the
admissibility of a statement by the defendant, the judge shall hear and
determine the question of its admissibility out of the presence of the jury. In
such a hearing the rules of evidence shall apply and the burden of persuasion
as to the admissibility of the statement is on the prosecution.[Emphasis
added.]
3. Defendant told Detective Lucas
that he was born in Mexico and was in this country as a lawful permanent
resident. At the plea hearing conducted on June 17, 2013, defendant
acknowledged that as a consequence of this conviction, his legal residency
status could be revoked and he could be deported to Mexico.
4. The
BCPO's Miranda form states: (1) you have the right to remain silent and not
answer any questions; (2) anything you say may be used against you in a court
of law; (3) you have the right to speak to an attorney at any time and have the
attorney present with you during questioning; (4) if you cannot afford to pay
for an attorney, one will be assigned to represent you before questioning if
you so desire; and (5) you have the right to stop answering any questions or
ask to have an attorney at any time. Do you understand? Answer _____ Initials
______.
1. Transliterators are individuals
who are trained to represent letters or words in the corresponding characters
of another alphabet. Transliterate, Webster's II New College Dictionary 1171
(2001).
3. See Vision
Statement, N.J. Courts, https://njcourts.gov/public/mission.html?lang=eng.
The opinion of the court
was delivered by FUENTES, P.J.A.D.
