Section 522. Interpreter-Client Privilege

(a) Definitions. For the purpose of this section, the following words shall have the following meanings:

(1) Interpreter. An “interpreter” is a person who is readily able to interpret written and spoken language simultaneously and consecutively from English to the language of the non-English speaker or from said language to English.

(2) Non-English Speaker. A “non-English speaker” is a person who cannot speak or understand, or has difficulty in speaking or understanding, the English language, because he or she uses only or primarily a spoken language other than English.

(b) Privilege. Disclosures made out of court by communications of a non-English speaker through an interpreter to another person shall be a privileged communication, and the interpreter shall not disclose such communication without permission of the non-English speaker.

(c) Scope. The privilege applies when the non-English speaker had a reasonable expectation or intent that the communication would not be disclosed.

NOTE

Subsection (a). This subsection is derived nearly verbatim from G. L. c. 221C, § 1.

Subsection (b). This subsection is derived nearly verbatim from G. L. c. 221C, § 4(c). See Section 4.06 of the “Standards and Procedures of the Office of Court Interpreter Services,” 1143 Mass. Reg. 15 (Nov. 13, 2009), which is available at http://www.mass.gov/courts/ocis-standards-procedures.pdf (“Court interpreters shall protect the confidentiality of all privileged and other confidential information.”).

Subsection (c). This subsection is derived nearly verbatim from G. L. c. 221C, § 4(c). There is no case law in Massachusetts that defines the scope of this privilege.

Right to Assistance of an Interpreter. General Laws c. 221C, § 2, states as follows:

“A non-English speaker, throughout a legal proceeding, shall have a right to the assistance of a qualified interpreter who shall be appointed by the judge, unless the judge finds that no qualified interpreter of the non-English speaker’s language is reasonably available, in which event the non-English speaker shall have the right to a certified interpreter, who shall be appointed by the judge.”

See Mass. R. Crim. P. 41 (“The judge may appoint an interpreter or expert if justice so requires and may determine the reasonable compensation for such services and direct payment therefor.”); Mass. R. Civ. P. 43(f) (“The court may appoint an interpreter of its own selection and may fix his reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court.”). See also G. L. c. 221C, § 3 (waiver of right to interpreter).

Procedural Issues. The statute requires the interpreter to swear or affirm to “make true and impartial interpretation using [the interpreter’s] best skill and judgment in accordance with the standards prescribed by law and the ethics of the interpreter profession.” G. L. c. 221C, § 4(a). The statute also states that “[i]n any proceeding, the judge may order all of the testimony of a non-English speaker and its interpretation to be electronically recorded for use in audio or visual verification of the official transcript of the proceedings.” G. L. c. 221C, § 4(b).

Cross-Reference: Section 604, Interpreters; “Standards and Procedures of the Office of Court Interpreter Services,” 1143 Mass. Reg. 15 (Nov. 13, 2009), available at http://www.mass.gov/courts/ocis-standards-procedures.pdf.