Dear Chief Justice and Joint Working Group:

We write to express our concern about current plans to deploy video remote interpreting ("VRT') in California's state courts.

The California state courts serve the largest population of limited-English proficient (LEP) individuals nationwide. Over the past thirty years, the courts have developed a strong foundation in law and practice to provide certified and otherwise qualified interpreters in many proceeding types, including criminal, juvenile and some civil proceedings. The courts have also established certification standards to ensure a consistent level of competent, in-court interpretation services.

We are concerned that current proposals by trial courts in the Central Valley, as well as the promotion of VRI initiatives by the Judicial Council, lack sufficient safeguards to require adequate technology and to limit VRI to instances in which in-court interpretation is otherwise impossible. It has been reported that these plans are not supported by a comprehensive cost-benefit analysis and fail to give due consideration to the implications for LEP communities. Specifically, from our understanding, the Fresno Superior Court and other Region 3 courts are launching VRI without any clear and enforceable statewide standards or conditions for its appropriate use. This anticipated use of VRI raises several serious concerns.
The Region 3 courts are deploying VRI using inadequate technology. It has been reported that the Region 3 courts are set to implement a conferencing system and equipment with poor video quality and narrow-band audio that will compromise the integrity of the communications and make a complete and accurate interpretation virtually impossible.

There appear to be no clear restrictions or guidance in place to ensure VRI is used appropriately. We are informed that the Region 3 courts intend to use VRI not just for unusual circumstances when 110 in-person interpreter is available or for one-on-one, out-of-court communications, but for in-court communications more generally, including evidentiary proceedings, regardless of the complexity or number of speakers. Further, the courts need not prioritize the use of in-person interpreters nor ask for the consent of litigants before relying on VRI, which is a marked departure from recognized standards for court interpretation. To the extent that VRI is appropriate to expand access under limited circumstances-for emergency hearings and short matters that cannot be delayed, or for extreme language minorities for whom no interpreter is able to appear--these circumstances and proceeding types must be clearly and narrowly defined to ensure that remote interpreting is not misused.

Most important, due process and meaningful access to the courts may be threatened by the expanded use of remote interpretation. We caution against expanding the use of video appearances and video-mediated interpreting when serious questions remain whether the currently contemplated protocols and technological capacity adequately protect a number of constitutional rights. The right to competent interpretation in criminal proceedings is well established based on the fundamental connection between linguistic presence and due process rights. Article I, section 14 of the California Constitution requires that a non-English speaking defendant be provided the assistance of an interpreter throughout the proceedings and "nothing short of a sworn interpreter at defendant's elbow," will satisfy this constitutional guarantee." Unfettered access to a competent interpreter is also closely associated with the right to effective assistance of counsel: "if the right to be [linguistically] present is to have meaning [it is imperative that every criminal defendant] possess 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.":'

The need for competent interpretation in civil courts is also well established. As stated in a recent publication by the Brennan Center for Justice:
"Across the country, people are stuck in a Kafkaesque nightmare: they must go to court to protect their children, homes or safety, but they can neither communicate nor understand what is happening. [ ... ] When state courts fail to provide competent interpreters to LEP people in civil cases, the costs are high. People suffer because they cannot protect their children, their homes, or their safety. Courts suffer because they cannot make accurate findings, and because communities lose faith in the justice system. And society suffers because its civil laws - guaranteeing the minimum wage, and barring domestic violence and illegal eviction - cannot be enforced."

While high quality video technology can help expand interpretation services that otherwise could not be delivered, clear standards are necessary to avoid unnecessary and inadequate VRI that undermines the right to competent and effective interpretation. Just as anyone who has attempted to attend a meeting as the sole person participating via video conference knows, one's ability to participate in an otherwise in-person conversation is hampered by not being in the same room as other participants. Separating interpreters from LEP court users and other proceeding participants raises multiple issues that can impact accuracy, access, and linguistic presence. Hand gestures and other visual cues are necessary elements of communication that may be disrupted by VRI. Nonverbal cues are essential for an interpreter to understand meaning and accurately interpret what is being said. They are also critical for communicating with both the court and LEP witnesses (e.g., to request a repetition, a clarification or a pause for an LEP party to confer with her attorney, to remind a witness to pause to allow for the interpretation, or to wait before answering a question while an objection is pending). These critical nonverbal elements occur simultaneously, as the interpretation is taking place, and may be unreadable or go unnoticed using VRI, particularly with the technology currently available for the proposed expansion. The already difficult task of understanding verbal statements for precise translation necessary to court proceedings will undeniably be made more difficult by this separation and by less-than-perfect audio conditions. Private conferring between a defendant and his counsel with the help of a court interpreter will become artificially controlled, more limited, and potentially impossible depending on the VRI equipment and conditions. The issues outlined above, as well as more subtle issues related to the impacts of technology on communication, require further evaluation and review to ensure LEP rights are protected under any expanded use of VRI.

Given these concerns, recent research has recommended that "videoconference technology [for remote interpreting] ... be used with utmost care and that further research on its effects is required before it can be used more widely.:" In fact, the limited research available on video-mediated communication raises serious questions about potential harm to defendants and litigants from experimentation in the area of video appearances and other video-mediated communications, including VRI. A Chicago study on the use of video conferencing for immigration courts hearings found that: Respondents relying on interpreters had a greater frequency of problems created or exacerbated by videoconferencing and were more likely to receive negative dispositions."

Considering the above concerns, we provide the following recommendations:

1. VRI should not be implemented without statewide and enforceable standards in place to protect the integrity of the judicial process and the rights of all parties. We urge the Judicial Council to adopt clear and enforceable rules on VRI to safeguard LEP rights as part of the language access plan. Standards for VRI must take into account the inherent limitations of video-mediated communications, set technological minimums, and ensure that the use of in-person interpreters is prioritized, as is already the case in other standards that have been adopted. Such standards should be established through a process that involves careful study of existing research as well as input from a broad array of stakeholders, and provides for testing and pilot programs to evaluate the success of implementation.

2. The Judicial Council should adopt rules and budget policies to ensure that individual courts do not implement VRI before a statewide plan can be finalized. We note that although the Judicial Council is currently developing a language access plan for California that could address the use of VRI, and has created mechanisms for public input, individual courts are already forging ahead with their own plans and adopting their own practices for implementing VRI before the statewide plan is even finalized.

3. No assumption should be made that VRI is the one-stop solution to providing interpretation services. We are encouraged by current efforts to adopt a statewide language access plan and to expand interpreter services to include all civil proceedings. We warn, however, that use of"VRI is not an appropriate solution for expansion of interpreter services in most cases. Overreliance on VRI could create a two-tier system of justice, with second-rate access and compromised due process rights for LEP populations.

In sum, we oppose expanding the use of VRI in California courts before the language access plan is completed and without standards and rules that are based on validated research and that maximize access to justice and protect due process, and--except in rare situations where VRI is the best alternative to having no certified interpreter-we specifically object to the implementation of VRI in the Fresno Superior Court and other Region 3 courts given the reported technological shortcomings in their current equipment and capacity. Given the serious risks to the integrity of communications, accuracy, and fairness, VRI should not be pursued or justified as a cost-cutting opportunity. Rather, it should be implemented to enhance and expand language access to ancillary services outside the courtroom. Its use for court proceedings should be restricted until such time as the courts have completed a thorough, realistic analysis of its true costs, including its impacts on civil liberties and the integrity of the judicial process.

Thank you for your consideration and please do not hesitate to contact Julia Harumi Mass, Senior Staff Attorney with the ACLU of Northern California, at (415) 621-2493, if you have any questions.

Sincerely,

American Civil Liberties Union of California

California Public Defenders Association

Centro Legal de la Raza

Chinese for Affirmative Action

Immigrant Legal Resource Center

La Raza Centro Legal

Lawyers' Committee for Civil Rights of the San Francisco Bay Area

Legal Aid Society-Employment Law Center

Mujeres Unidas y Activas

Molly O'Neal, Santa Clara County Public Defender

Pangea Legal Services