State v. Neave

In State v. Neave, 117 Wis. 2d 359, 344 N.W.2d 181, 186 (Wis. 1984), the defendant spoke exclusively Spanish and very little, if any, English. Although an interpreter was appointed to assist the defendant at his preliminary hearing and arraignment, there was no interpreter appointed at his trial or sentencing. On appeal from the denial of the defendant's application for post-conviction relief, the Wisconsin Supreme Court dealt with the issue of whether a defendant's right to an interpreter--which was not provided by the federal or state constitutions or by state statute but, rather, was guaranteed by notions of fairness--may be waived by the defendant's attorney or was to be treated as a personal right which may only be waived by the defendant. After examining those fundamental rights which could only be waived by the defendant personally--whether to plead guilty, request a trial by jury, forego the assistance of counsel, or obtain the assistance of counsel and refrain from self-incrimination--and other rights that essentially fell under the category of tactical decisions entrusted to the defendant's counsel, the court concluded that any waiver of the defendant's right to an interpreter must be made voluntarily in open court on the record and not by the defendant's attorney. The Court concluded: Due regard for the right of a criminal defendant who does not understand English to the services of an interpreter requires that whenever a trial court is put on notice that the accused has a language difficulty, the court must make a factual determination of whether the language disability is sufficient to prevent the defendant from communicating with his attorney or reasonably understanding the English testimony at the preliminary hearing or trial. If the court determines that an interpreter is necessary, it must make certain that the defendant is aware that he has a right to an interpreter and that an interpreter will be provided for him if he cannot afford one. Any waiver of the right to an interpreter must be made voluntarily in open court on the record. (Neave, 344 N.W.2d at 188-89.)