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(Applicable to District Court and Superior Court)
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.
This rule is an abbreviated version of Fed.R.Crim.P. 28 as it appeared prior to amendment in 1975. Federal Rule 28 now deals only with interpreters; the provisions governing expert witnesses, formerly Federal Rule 28(a), are now contained in Fed.R.Evid. 706. See Maine R.Crim.P. 28.
The right of a defendant to be present at trial, see e.g., Lewis v. United States , 146 U.S. 370, 372 (1892)--in the sense of being able to comprehend and participate meaningfully in the proceeding, United States ex rel. Negron v. New York , 434 F.2d 386 (2d Cir.1970)--the requirement that a defendant have “sufficient ... ability to consult with his lawyer with a reasonable degree of rational understanding,” Dusky v. United States , 362 U.S. 402 (1960), and the sixth amendment right to be confronted with adverse witnesses, applicable to the states through the fourteenth amendment, Pointer v. Texas , 380 U.S. 400 (1965), mandate that an interpreter be available to the defendant or witness who cannot effectively communicate. “Otherwise, ‘[t]he adjudication loses its character as a reasoned interaction ... and becomes an invective against an insensible object.’ ” United States ex rel. Negron, supra at 389, quoting Note, Incompetency to Stand Trial, (1969) 81 HARVARD L.REV. 454, 458.
Whenever an interpreter is placed between the witness and counsel, the judge, and the jury, problems of distortion and confusion may arise. For example, where some of the jurors understand the language of the witness and the judge or counsel does not, the jurors may hear testimony that should have been excluded. The Supreme Judicial Court has suggested the following:
1. Counsel should address his questions to the witness in the second person, and not to the interpreter.
2. The interpreter should translate the question exactly without any additional or supplementary remarks of his own.
3. The interpreter should then translate the answer of the witness in the first person, neither editing nor adding to the witness’ words. Even if the answer is non-responsive, the interpreter should give it and allow the judge to pass on its admissibility, for the interpreter’s sole function is to translate.
4. Extraneous conversations between the witness and the interpreter should not be permitted. If such conversations do occur for some reason, they should be translated into English for the judge and counsel to hear.
5. When there are sitting on the jury individuals who understand the language of the witness, they are to be instructed that it is the interpreted testimony in English that is evidence and not their own translations of the witness’ answers.
6. Neither party has the right to have a juror excused solely because that juror understands the language of a witness. However, in certain circumstances the judge in his discretion may decide whether to excuse such a juror is appropriate. For example, this action may be desirable on motion of the defendant in a criminal matter in which the progress of the trial will not be interrupted by the removal of the juror, sufficient alternate jurors have been empaneled, and interpreted testimony constitutes a major part of the case.
Commonwealth v. Festa , 369 Mass. 419, 429-30 (1976) (footnote omitted).
While the Supreme Court has established that it is within the discretion of the court whether to appoint an interpreter, Perovich v. United States , 205 U.S. 86, 91 (1907), it has not found a right to state-provided interpreters to be a constitutional absolute since that issue has never been squarely presented. Lower federal courts have held, however, that if the court is put on notice that a defendant has a language difficulty, the court must make it unmistakably clear to him that he has the right to have a competent translator assist him, at state expense if he is indigent, throughout the proceeding. United States v. Carrion , 488 F.2d 12, 15 (1st Cir.1973), cert. denied, 416 U.S. 907 (1974); United States ex rel. Negron v. New York , 434 F.2d 386, 390-91 (2d Cir.1970). Conversely, if the need for an interpreter’s services is not apparent nor are such services requested, it is no abuse of discretion to fail to advise a defendant of their availability. United States v. Barrios , 457 F.2d 680, 682 (9th Cir.1972).
The justices of the Superior Court, G.L. c. 221, § 92 , the Boston Municipal Court, G.L. c. 218, § 67 , and the East Boston District Court, G.L. c. 218, § 68 , may appoint official interpreters for the sessions of those courts. Other District Courts may employ interpreters as the need therefor arises. G.L. c. 262, § 32 . Interpreters are to be compensated for their services by the Commonwealth. G.L. c. 221, §§ 92, 92A ; c. 262, § 32 . The appointment of interpreters in civil actions is governed by Mass.R.Civ.P. 43(f).
The federal rule does not indicate that it was intended to benefit only the indigent defendant.
The view that the Rule should be restricted overlooks the fact that the interpreter’s services, though required by the defendant’s own language problem, benefit the court and prosecution as well as the defense. The integrity of the judicial process--not to mention the desirability of avoiding collateral attacks--demands an accurate and impartial translation. Such a translation can only be guaranteed by court appointment of interpreters.
8A J. MOORE, FEDERAL PRACTICE Para. 28.02 at 28-3 (1978). But see United States v. Desist , 384 F.2d 889, 901-03 (2d Cir.1967), aff’d on other grounds 394 U.S. 244 (1969). Former practice in Massachusetts appeared to be that interpreters, unless retained by non-indigent defendants, were paid by the court. Official interpreters are expressly barred from receiving gratuities, bonuses or fees beyond that compensation paid by the Commonwealth. G.L. c. 218, § 67 ; c. 221, § 92 .
The use of interpreters is not limited to situations where the defendant or a witness is not English-speaking. General Laws c. 221, § 92A provides for the appointment of interpreters for the deaf. The court in United States v. Addonizio , 451 F.2d 49, 68 (3d Cir.), cert. denied 405 U.S. 936 (1972), held that the appointment as interpreter of the wife of a witness whose illness made his speech difficult to understand was not an abuse of discretion. See Fairbanks v. Cowan , 551 F.2d 97 (6th Cir.1977) (father of retarded adult). The appointment of such a person should only be after a finding that he is disinterested in the outcome of the case. United States v. Addonizio, supra; Price v. Beto , 426 F.2d 875 (5th Cir.1970) (appointment of husband of deaf-mute victim held violative of due process). See Maine R.Crim.P. 28, which provides for appointment of a “disinterested” interpreter of the court’s own selection.
The courts’ power to appoint expert witnesses to assist the indigent defendant or the court itself is nowhere express; rather, it is grounded upon the long-standing belief “that it is for the interest of the Commonwealth ... that all proper investigations should be made, in order to guard against the danger of doing injustice to the prisoner....” Attorney General, petitioner , 104 Mass. 537, 544 (1870). The Supreme Judicial Court has approved the practice of the trial judge’s authorization, on a proper showing, of an indigent defendant to expend public funds for expert assistance. See Commonwealth v. Silva , 371 Mass. 819, 821 (1977) (psychiatric expert).
Under Superior Court Rule 54 (1974), the court is not to allow compensation for the services of an expert witness unless his employment by the defendant was authorized by the court. If the compensation of defense experts is approved by the court, it is paid by the Commonwealth. G.L. c. 280, §§ 4 , 16 ; c. 261, §§ 27A-G .
Pursuant to G.L. c. 261, § 27B , applicable by its terms to criminal cases, a defendant may file an affidavit of indigency and request waiver, substitution or payment by the Commonwealth of costs and fees. Substitution means that if an alternative to a translator is available at lower or no cost, the judge may order that this alternative be used if it is “substantially equivalent ... and does not materially impair the rights of any party.” G.L. c. 261, § 27F . If, after hearing, the court finds that certain services are “reasonably necessary to assure the [defendant] as effective a ... defense as he would have if he were financially able to pay,” the court must grant the defendant’s request for payment by the Commonwealth of “extra fees and costs,” defined in G.L. c. 261, § 27A as including “expert assistance.”
The indigent defendant cannot as of right nominate the expert whom he wishes to employ, Commonwealth v. Erickson , 356 Mass. 63, 248 N.E.2d 270 (1969); Commonwealth v. Medeiros , 354 Mass. 193, 199-200 (1968), cert. denied sub nom., Bernier v. Massachusetts, 393 U.S. 1058 (1969), but in practice most judges will permit the defendant to specify an expert, although a ceiling may be established on the amount which may be expended. 30 MASS.PRACTICE SERIES (Smith) § 492 (1970, Supp.1978).
In addition to appointing experts to assist the defendant in the preparation or presentation of his defense, the court is empowered to call experts on its own motion to aid in its determination of issues of fact or law. See Commonwealth v. Lykus , 367 Mass. 191 (1975) (Separate opinion of Kaplan J., 206 at 213).