If you represent a criminal defendant who requires an ASL interpreter, you will be responsible for coordinating those services for all communications with your client. It is important to note that ASL interpreters are bound by their own code of ethics and confidentiality, which prevents them from sharing any information they learn while they are providing interpretation services. It is also important to know that not all interpreters are the same. Some interpreters are specifically trained to interpret specific areas of communication, such as legal or medical. The specific needs of the communication itself should be considered when looking for an interpreter.

The responsibility for providing an interpreter during a criminal proceeding falls on the prosecution. The prosecutor must be made aware of the need for an interpreter. The prosecutor should then notify the court that an interpreter must be made available on the day the individual must be present in court. This interpreter is to relay the communications that take place in the courtroom itself to the defendant. If the defendant addresses the court, the interpreter is to also relay the communications from the defendant to the court.

If an individual requires an accommodation to be in place on the court day to allow for meaningful participation in the proceeding and that accommodation is not provided on the day of the hearing, the attorney should request a continuance. For instance, if you and your client appear on the day of the hearing and the ASL interpreter is not there or was not notified, the court should be made aware that communication is not possible without the interpreter and that the proceeding should not take place.

For civil matters, the individual requiring the use of an interpreter is responsible for taking steps to ensure an interpreter is present on the day of the hearing. The party may seek guidance from the court, particularly if the court has interpreters that they regularly use who may be available. However, the cost of the interpreter’s services may need to be paid by the party.

A “qualified interpreter” is an individual who is able to interpret effectively, accurately and impartially, both receptively and expressively, using any specialized vocabulary required by the circumstances. Just as attorneys had to learn a host of new vocabulary in law school, ASL interpreters must also learn the signs for that vocabulary. There are qualified interpreters who specialize in different areas, such as legal or medical, and who are able to accurately and effectively interpret. What is important to remember is that an interpreter is not there to provide explanations to the individual, but instead is there to communicate what is being said to the individual in a manner the individual understands. It is important that you ask the interpreter if they are qualified to interpret for the situation you need, otherwise you run the risk that the interpreter will not accurately relay information to the client.

In 2008, the Department of Justice proposed adding language to the definition of ‘‘qualified interpreter'' to clarify that the term includes, but is not limited to, sign language interpreters, oral interpreters, and cued-speech interpreters.1  As the Department explained, not all interpreters are qualified for all situations. For example, a qualified interpreter who uses American Sign Language (ASL) is not necessarily qualified to interpret orally. In addition, someone with only a rudimentary familiarity with sign language or finger spelling is not qualified, nor is someone who is fluent in sign language but unable to translate spoken communication into ASL or to translate signed communication into spoken words. Although some comments on the proposed rule sought to require that interpreters be certified, the DOJ ultimately decided against imposing a certification requirement.2  All that is required under the ADA is that the interpreter be qualified. However, a state or local law may require a higher standard, such as certification.

• 1Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 73 Fed. Reg. 34508, 34520 (proposed June 17, 2008).
• 2Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 Fed. Reg. 56236, 56264 (Sept. 15, 2010) (codified at 28 C.F.R. § 36.104).