Protecting Non-Native English Speakers from Self-Incrimination

Nathan R. Hardymon, KLJ Staff Editor[1]

In United States v. Botello-Rosales, the defendant was arrested and given his Miranda warnings in Spanish.[2] The Ninth Circuit held that the district court erred in denying the defendant’s suppression motion.[3] The holding came from the Miranda warnings that were given the defendant, where a detective translated the warning into Spanish as “You have the right to remain silence.
Anything you say can be used against you in the law. You have the right to talk to a lawyer and to have him present with you during the interview. If you don’t have the money to pay for a lawyer, you have the right. One, who is free, could be given to you.”[4]

Two problems arose from the last part of the warning. Specifically, the detective used the word “libre,” which means “available or at liberty to do something,” while the detective actually meant “without cost.”[5] Further, “the phrasing of the warning—that a lawyer who is free could be appointed—suggest[ed] that the right to appointed counsel is contingent on the approval of a request or on the lawyer’s availability, rather than the government’s absolute obligation.”[6] The court reasoned that these warnings were “affirmatively misleading” and did “not satisfy Miranda’s strictures.”[7]

As is widely known, Miranda v. Arizona was decided to protect the privilege against self-incrimination provided by the Fifth Amendment.[8] However, do these rights exist if a person does not actually understand them when being advised? With a largely monolingual society,[9] it is no surprise that linguistic understanding of the warnings has been a relatively contained issue. However, as the immigrant population rises, this issue could become even more widespread.

This raises the first issue touched upon in this post: the standard that courts use to determine the sufficiency of a translation of Miranda rights by an officer. Moran v. Burbine suggests the standard by saying that a translation that communicates “both …the nature of the right being abandoned and the consequences of the decision to abandon it” is sufficient.[10] Thus, “[t]he translation . . . need not be a perfect one, so long as the defendant understands that he does not need to speak to the police and that any statement he makes may be used against him.”[11] However, if a translation is “affirmatively misleading,” it will not meet the standards set forth in Miranda.[12]

Another issue raised is the standard that courts use to determine a person’s understanding of the Miranda warnings when he or she has limited English proficiency. The courts use witness testimony to determine the extent of the understanding of the warnings. United States v. Bustillos-Munoz is illustrative.[13] In that case, the court relied on testimony by officers that they “were able to converse in English [with the defendant] with no problems”[14] and that the defendant did not appear to have any difficulty understanding the officer.[15] In most of these cases, “the waivers [are] found valid” because the defendants have some English ability.[16] Such a method seems to pose a problem though. If the defendant has the right not to speak to the police, and the way the court is testing sufficiency is by a conversation with police, the test depends upon at least some waiver of the right.

The most important question though is how to deal with people who have no understanding of English. Officer translation is a good tool for this and courts have already begun to test whether a translation is sufficient. However, given the fact that there are more than 7,000 languages in the world,[17] officer translation cannot realistically be held up as the ultimate method of communicating rights to the non-English-speaking population. The Communication of Rights Group offers some suggestions for communicating rights in these circumstances: develop standardized statements in other languages; inform suspects about access to an interpreter at the beginning of an interview; present each right individually; and, develop a legal standard of demonstrated understanding by the suspect.[18] Two more possibilities are investing in officer training in foreign languages and requiring a level of English proficiency such that a person will be able to understand their rights before entering the United States.

Many of the recommendations from the Communication of Rights Group Still require some level of English proficiency by a suspect. Thus, they do not address the problem wholly. The two options that seem to address the issue most are developing standardized statements in other languages and investing in officer training in foreign languages. However, these options still do not address all concerns given the number of languages spoken in this country.

Thus, without further development, we are seemingly faced with three choices: suppress all evidence spoken by the suspect; allow in all evidence spoken by the suspect; or mandate a level of English proficiency to enter the country. None of these are attractive options. In summary, not every person is currently afforded the same right against self-incrimination to which all persons in the United States should be entitled.[19]

[1] J.D. expected May, 2018.
[2] U.S. v. Botello-Rosales, 728 F.3d 865, 867 (9th Cir. 2013).
[3] Id.
[4] Id. The Spanish used by the detective is not included in the opinion.
[5] Id.
[6] Id.
[7] Id.
[8] Miranda v. Arizona, 384 U.S. 436, 478 (1966). The person “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires.” Id. at 479.
[9] See Census Report, U.S. Census Bureau (2014), https://www.census.gov/quickfacts/table/POP815212/00 (Only 20.9% of person speak a language other than English at home).
[10] Moran v. Burbine, 475 U.S. 412, 421 (1986).
[11] U.S. v. Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990).
[12] Botello-Rosales, 728 F.3d at 867.
[13] U.S. v. Bustillos-Munoz, 235 F.3d 505 (10th Cir. 2000).
[14] Id. at 517.
[15] Id.
[16] Aneta Pavlenko, Non-native speakers of English and the Miranda warnings, Teachers of English to Speakers of Other Languages (2009), http://www.tesol.org/docs/default-source/new-resource-library/nns-of-english-and-the-miranda-warnings.pdf?sfvrsn=0.
[17] See Ethnologue, https://ethnologue.com.
[18] Communication of Rights Group, Guidelines for communicating rights to non-native speakers of English in Australia, England and Wales, and the USA, American Association for Applied Linguistics, http://www.aaal.org/?page=CommunicationRights.
[19] See David Cole, Are Foreign Nationals Entitled to the Same Constitutional Rights as Citizens?, 25 T. Jefferson L. Rev. 367, 371 (2003).

*Featured Image by Oregon Department of Transportation, licensed under CC BY 2.0.