In State v. Oscar R. Juracan-Juracan (A-32-22/087849), the Supreme Court of New Jersey held that there is a presumption that foreign language interpretation services will be provided in person during a criminal trial, citing the New Jersey Judiciary’s longstanding practice. Accordingly, the court set forth guidelines and factors to assist trial courts in deciding whether remote interpreting (VRI) service should be used during criminal jury trials.
Facts of State v. Juracan-Juracan
In response to the COVID-19 pandemic, the Court announced amendments to the New Jersey Judiciary’s Language Access Plan (LAP) and expanded the circumstances in which remote interpreting services may be used. Prior to the update, VRI was allowed only for “emergent matters” or “short non-emergent matters of 30 minutes or less.” The 2022 LAP now allows VRI for both “emergent and routine proceedings,” subject to judicial discretion.
In 2019, defendant Oscar R. Juracan-Juracan, a native speaker of Kaqchikel — a language spoken by approximately 450,000 people worldwide — was charged with several offenses related to an alleged sexual assault. During pre-trial proceedings, he requested a Kaqchikel interpreter and one was provided. The interpreter, however, resided on the West Coast, so he appeared remotely. Additionally, the Kaqchikel interpreter did not speak English, only Kaqchikel and Spanish, so a second interpreter was required to translate to and from Spanish and English.
After the court advised counsel that the Kaqchikel interpreter would continue to participate virtually during the jury trial, defendant moved for in-person interpretation services. During the motion hearing, the Kaqchikel interpreter expressed concerns about his ability to provide interpretation services remotely during the trial. The trial court denied defendant’s motion, advising the Kaqchikel interpreter that the court would give him “as much time as you need, understanding the complexities, not only of interpretations, interpreting through two individuals, and also virtually.” The trial court reasoned that proceeding with VRI during the trial was “what’s financially feasible, what’s fair, what’s just.”
The Appellate Division denied defendant’s motion for leave to appeal in light of the VRI policy change.
NJ Supreme Court’s Decision in State v. Juracan-Juracan
The New Jersey Supreme Court reversed. It held that in a criminal jury trial, there is a presumption that foreign language interpretation services will be provided in person, which is “consistent with the New Jersey Judiciary’s longstanding practice.” It remanded the matter for the trial court to reconsider whether VRI is appropriate in the current case after assessing the factors articulated in the opinion.
In reaching its decision, the New Jersey Supreme Court acknowledged that “the spoken word is unquestionably the principal method of communication during in-court proceedings, so a participant’s ability to understand and communicate through language is key to ensuring the fairness of the proceedings.” It also noted that New Jersey courts have recognized a criminal defendant’s right to an interpreter and the constitutional underpinnings of that right.
As the New Jersey Supreme Court explained in its opinion, the use of VRI has evolved over time. While it was initially limited to emergent circumstances, the COVID-19 pandemic required it to be used more frequently. In 2020, in light of ongoing remote court operations, the Court approved an addendum to the 2017 LAP that expanded the standard for the use of remote interpreting by permitting remote interpreting services to be used for emergent or non-emergent matters even if longer than 30 minutes when an on-site interpreter is not available, including during an emergency that prevents the courts from operating in person. Two years later, the Court revised the LAP in part to formalize judicial discretion to authorize remote interpreting services for emergent and routine proceedings consistent with current and ongoing practices.
Going forward, the New Jersey Supreme Court established guidelines and factors to assist trial courts in deciding whether VRI should be used during criminal jury trials. In considering whether to proceed to a jury trial with in-person or remote interpreting, trial courts, in exercising their discretion pursuant to the 2022 LAP, should take into consideration the following nonexclusive list of factors: (1) the nature, length, and complexity of the trial; (2) the number of parties and witnesses involved; (3) whether an interpreter is available to interpret in person at trial; (4) the impact any substantial delay in obtaining an in-person interpreter would have on the defendant and on third-parties such as co- defendants or victims; (5) whether the defendant tentatively plans to testify; (6) the financial costs associated with in-person interpreting as compared to remote interpreting; and (7) the interpreters’ position as to whether they believe they can adequately fulfill their duties to interpret accurately and meet professional standards while interpreting virtually.
“In the rare cases in which VRI is used for a criminal jury trial, guardrails should be put in place to ensure a fair trial for defendants, and a trial court’s decision to use remote instead of in-person interpreting services should be approved by the Assignment Judge or Presiding Judge,” the court added. “To the extent that costs are a consideration, the vicinage should consult with the Administrative Office of the Courts for further guidance.”