Statutes, rules and case law

Disclaimer: This compilation of statutes, court rules, and case law has been provided for the convenience of the reader. It is not intended to be comprehensive and may not be current. Where the law has been paraphrased or summarized, it does not represent the official position of the Wisconsin Supreme Court or Director of State Courts.

Federal statutes and regulations

Americans with Disabilities Act
The Americans with Disabilities Act (ADA), 42 USC §§12101-12213, requires that state and local government facilities, including courts, be accessible to individuals with disabilities and provide reasonable accommodations to qualified persons. The U.S. Department of Justice has published regulations implementing the ADA, found in 28 CFR Part 35. The regulations under ADA Title II require that courts and other public entities take "appropriate steps to ensure the communications with applicants, participants, and members of the public with disabilities are as effective as communications with others." (28 CFR 35.160(a)). State and local governments are required to "furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an opportunity to participate in, and enjoy the benefits of, the service, program, or activity." 28 CFR 35.160(b)&(1). "Auxiliary aids and services" are defined in 28 CFR 35.104 as:

Qualified interpreters, note takers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, written materials, telephones compatible with hearing aids, closed captioned decoders, open and closed captioning, telecommunication devices for deaf persons (TTD/TTYs), video text displays, and other effective methods of making aurally delivered information available to individuals with hearing impairments.

The ADA specifically calls for the use of "qualified" sign language interpreters. 42 USC §12102(1)(a). The regulations define "qualified" to mean "an interpreter who is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary." 28 CFR 36.303. The ADA focuses on the interpreter's actual ability to make communication effective in a particular circumstance. The regulations require that auxiliary aids and services be provided at public expense regardless of the disabled person's ability to pay. 28 CFR 35.130(f). The court may not charge any party with the cost of the interpreter.

Title VI of the Civil Rights Act of 1964
Section 601 of this act, 42 U.S.C. Section 2000d et. seq, provides that "No person in the United States shall on the grounds of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

Recently, the executive branch of the federal government has undertaken to improve compliance with Title VI with respect to language services.  Executive Order 13166 requires federal funding recipients to address the needs of persons who, due to limited English proficiency, cannot fully and equally participate in federally funded programs without language assistance.  The U.S. Department of Justice (USDOJ) has issued policy guidance on the responsibility of courts to provide language services.  The USDOJ guidance is posted at http://www.usdoj.gov/crt/cor/13166.htm.

The USDOJ has the right to investigate complaints against any agency that does not provide free language services when necessary to participate in the program.  An agency's federal funding may be withheld until the complaint is resolved.  Circuit courts with high limited English proficiency populations and courts that receive direct federal funding for court programs need to be particularly cognizant of the Title VI requirements.  Under the guidance, if funding for increased services is limited, courts may provide interpreter services beginning with the most critical services and the most commonly used languages.  Where important rights or personal safety are at stake, interpreters should be provided.

Federal case law

The right to an interpreter is not explicit in the United States Constitution. However, the constitutional right to an interpreter may arise under the Sixth Amendment as part of the right to counsel (effective communication between attorney and client), or as part of the right to confront witnesses. United States ex rel Negron, 434 F. 2d 386, 389 (2d Cir. 1970). The right may also arise under the due process clause of the Fifth and Fourteenth Amendments requiring that a defendant be able to participate in his own defense. When a trial court has notice of a defendant's language deficiency, it is required to communicate clearly to the defendant the right to a competent interpreter, at government expense if the defendant is unable to afford one. The right to an interpreter may be waived only through intentional relinquishment or abandonment of a known right. Id.

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Wisconsin statutes and regulations

20.625 Circuit courts
(1) There is appropriated to the director of state courts for the following programs:

(c) Court interpreter fees. The amounts in the schedule to pay interpreter fees reimbursed under s. 758.19 (8). [$238,800 in 2001-02 and $595,000 in 2002-03]

46.295 Interpreters for the hearing-impaired
(1) The department may, on the request of any hearing-impaired person, city, village, town or county, or private agency, provide funds from the appropriation under §20.435 (6) (a) and (hs) to reimburse interpreters for hearing-impaired persons for the provision of interpreter services.

(2) The department shall grant priority to requests to pay fees charged by interpreters for the following, in the following order:

(a) Emergencies.

(b) Medical, mental health, alcohol and drug abuse, psychiatric and psychological services.

(c) Legal services and civil court proceedings.

(d) Matters concerning law enforcement personnel.

(e) Matters concerning any federal, state, county, or municipal agency.

(3) The department shall maintain lists of qualified interpreters under §885.37 (5) (b).

(4) The department may use as an interpreter for hearing-impaired persons only the following:

(a) An interpreter for hearing-impaired persons who is certified by the national registry of interpreters for the deaf.

(b) If an interpreter under par. (a) is unavailable, an interpreter for hearing-impaired persons whose qualifications have been determined appropriate by the department.

(5) The department may bill any public or private agency at the rates established by the department for interpreter services for hearing-impaired persons commensurate with the certification or qualification level of the interpreter providing services if the department determines that the agency is required under state or federal law to provide interpreter services to a hearing-impaired person or if the agency agrees to pay for the services.

(6) The department shall promulgate rules to implement this section.

HFS 77 contains the regulation governing the provision of sign language interpreting services.

Delays, continuances, and extensions
(1) The following time periods shall be excluded in computing time requirements within this chapter:

(h) Any period of delay resulting from the need to appoint a qualified interpreter.

756.001 State policy on jury service; opportunity and obligation to serve as juror
(1) Trial by jury is a cherished constitutional right.

(2) Jury service is a civic duty.

(3) No person who is qualified and able to serve as a juror may be excluded from that service in any court of this state on the basis of sex, race, color, sexual orientation as defined in s. 111.32 (13m), disability, religion, national origin, marital status, family status, lawful source of income, age or ancestry, or because of a physical condition....

756.02 Juror qualifications
Every resident of the area served by a circuit court who is at least 18 years of age, a U.S. citizen, and able to understand the English language is qualified to serve as a juror in that circuit unless that resident has been convicted of a felony and has not had his or her civil rights restored.

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758.19 Director of state courts
(8) (a) From the appropriation under s. 20.625 (1) (c), the director of state courts shall reimburse counties up to 4 times each year for the actual expenses paid for interpreters required by circuit courts to assist persons with limited English proficiency under s. 885.38 (8) (a) 1. The amount of the reimbursement for mileage shall be 20 cents per mile going and returning from his or her residence if within the state; or, if without the state, from the point where he or she crosses the state boundary to the place of attendance, and returning by the usually traveled route between such points. The amount of the maximum hourly reimbursement for court interpreters shall be as follows:

1. Forty dollars for the first hour and $20 for each additional 0.5 hour for qualified interpreters certified under the requirements and procedures approved by the supreme court.

2. Thirty dollars for the first hour and $15 for each additional 0.5 hour for qualified interpreters, as defined in s. 885.38 (1) (c).

(b) To receive reimbursement under par. (a), a county must submit, on forms provided by the director of state courts, an accounting of the amount paid for expenses related to court interpreters that are eligible for reimbursement under par. (a). The forms must include expenses for the preceding 3-month period and must be submitted within 90 days after that 3-month period has ended. The director of state courts may not reimburse a county for any expenses related to court interpreters that are submitted after the 90-day period has ended. Reimbursement under par. (a) first applies to court interpreter expenses incurred on July 1, 2002.

807.14 Interpreters
On request of any party, the court may permit an interpreter to act in any civil proceeding other than trial by telephone or live audiovisual means.

814.67 Fees of witnesses and interpreters
(1) The fees of witnesses and interpreters shall be as follows:

(a) For attending before a municipal judge, an arbitrator, or any officer, board, or committee:

1. For witnesses, $5 per day.

2. For interpreters, $10 per one-half day or such higher fees as the municipality or county board may establish.

(am) For witnesses attending before a circuit court, $16 per day.

(b) For attending before the court of appeals or the supreme court:

1. For witnesses, $16 per day.

2. For interpreters, a fee determined by the supreme court.

(c) For traveling, at the rate of 20 cents per mile going and returning from his or her residence if within the state; or, if without the state, from the point where he or she crosses the state boundary to the place of attendance, and returning by the usually traveled route between such points.

(2) A witness or interpreter is entitled to fees only for the time he or she is in actual and necessary attendance as such; and is not entitled to receive pay in more than one action or proceeding for the same attendance or travel on behalf of the same party. A person is not entitled to fees as a witness or interpreter while attending court as an officer or juror. An attorney or counsel in any cause may not be allowed any fee as a witness or interpreter therein.

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885.37 Interpreters in municipal courts and administrative agency contested cases
(1) (b) If a municipal court has notice that a person who is a juvenile or parent subject to Ch. 938, or who is a witness in a proceeding under Ch. 938, has a language difficulty because of an inability to speak or understand English, has a hearing impairment, is unable to speak or has a speech defect, the court shall make a factual determination of whether the language difficulty or the hearing or speaking impairment is sufficient to prevent the individual from communicating with his or her attorney, reasonably understanding the English testimony or reasonably being understood in English. If the court determines that an interpreter is necessary, the court shall advise the person that he or she has a right to a qualified interpreter and that, if the person cannot afford one, an interpreter will be provided for him or her at the public's expense. Any waiver of the right to an interpreter is effective only if made voluntarily in person, in open court, and on the record.

(2) A municipal court may authorize the use of an interpreter in actions or proceedings in addition to those specified in sub. (1)(b).

(3)(a) In this subsection:

1. "Agency" includes any official, employee, or person acting on behalf of an agency.

2. "Contested case" means a proceeding before an agency in which, after a hearing required by law, substantial interests of any party to the proceeding are determined or adversely affected by a decision or order in the proceeding and in which the assertion by one party of any such substantial interest is denied or controverted by another party to the proceeding.

(b) In any administrative contested case proceeding before a state, county, or municipal agency, if the agency conducting the proceeding has notice that a party to the proceeding has a language difficulty because of the inability to speak or understand English, has a hearing impairment, is unable to speak, or has a speech defect, the agency shall make a factual determination of whether the language difficulty or hearing or speaking impairment is sufficient to prevent the party from communicating with others, reasonably understanding the English testimony or reasonably being understood in English. If the agency determines that an interpreter is necessary, the agency shall advise the party that he or she has a right to a qualified interpreter. After considering the party's ability to pay and the other needs of the party, the agency may provide for an interpreter for the party at the public's expense. Any waiver of the right to an interpreter is effective only if made at the administrative contested case proceeding.

(3m) Any agency may authorize the use of an interpreter in a contested case proceeding for a person who is not a party but who has a substantial interest in the proceeding.

(4) (a) The necessary expense of furnishing an interpreter for an indigent person in a municipal court shall be paid by the municipality.

(b) The necessary expense of furnishing an interpreter for an indigent party under sub. (3) shall be paid by the unit of government for which the proceeding is held.

(c) The court or agency shall determine indigency under this section.

(5) (a) If a municipal court under sub. (1)(b) or (2) or an agency under sub. (3) decides to appoint an interpreter, the court or agency shall follow the applicable procedure under par. (b) or (c).

(b) The department of health and family services shall maintain a list of qualified interpreters for use with persons who have hearing impairments. The department shall distribute the list, upon request and without cost, to courts and agencies who must appoint interpreters. If an interpreter needs to be appointed for a person who has a hearing impairment, the court or agency shall appoint a qualified interpreter from the list. If no listed interpreter is available or able to interpret, the court or agency shall appoint as interpreter another person who is able to accurately communicate with and convey information to and receive information from the hearing-impaired person.

(c) If an interpreter needs to be appointed for a person with an impairment or difficulty not covered under par. (b), the court or agency may appoint any person the court or agency decides is qualified.

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885.38 Interpreters in circuit and appellate courts
(1) In this section:

(a) "Court proceeding" means any proceeding before a court of record.

(b) "Limited English proficiency" means any of the following:

1. The inability, because of the use of a language other than English, to adequately understand or communicate effectively in English in a court proceeding.

2. The inability, due to a speech impairment, hearing loss, deafness, deaf-blindness, or other disability, to adequately hear, understand, or communicate effectively in English in a court proceeding.

(c) "Qualified interpreter" means a person who is able to do all of the following:

1. Readily communicate with a person who has limited English proficiency.

2. Orally transfer the meaning of statements to and from English and the language spoken by a person who has limited English proficiency in the context of a court proceeding.

3. Readily and accurately interpret for a person who has limited English proficiency, without omissions or additions, in a manner that conserves the meaning, tone, and style of the original statement, including dialect, slang, and specialized vocabulary.

(2) The supreme court shall establish the procedures and policies for the recruitment, training, and certification of persons to act as qualified interpreters in a court proceeding and for the coordination, discipline, retention, and training of those interpreters.

(3) (a) If the court determines that the person has limited English proficiency and that an interpreter is necessary, the court shall advise the person that he or she has the right to a qualified interpreter and that, if the person cannot afford one, an interpreter will be provided at the public's expense if the person is one of the following:

1. A party in interest.

2. A witness, while testifying in a court proceeding.

3. An alleged victim, as defined in s. 950.02 (4).

4. A parent or legal guardian of a minor party in interest or the legal guardian of a party in interest.

5. Another person affected by the proceedings, if the court determines that the appointment is necessary and appropriate.

(b) The court may appoint more than one qualified interpreter in a court proceeding when necessary.

(c) If a person with limited English proficiency, as defined in sub. (1) (b) 2., is part of a jury panel in a court proceeding, the court shall appoint a qualified interpreter for that person.

(d) If a person with limited English proficiency requests the assistance of the clerk of circuit courts regarding a legal proceeding, the clerk may provide the assistance of a qualified interpreter to respond to the person's inquiry.

(e) A qualified interpreter appointed under this subsection may, with the approval of the court, provide interpreter services outside the court room that are related to the court proceedings, including during court-ordered psychiatric or medical exams or mediation.

(f) The court may authorize the use of a qualified interpreter in actions or proceedings in addition to those specified in par. (a).

(4) (a) The court may accept a waiver of the right to a qualified interpreter by a person with limited English proficiency at any point in the court proceeding if the court advises the person of the nature and effect of the waiver and determines on the record that the waiver has been made knowingly, intelligently, and voluntarily.

(b) At any point in the court proceeding, for good cause, the person with limited English proficiency may retract his or her waiver and request that a qualified interpreter be appointed.

(5) Every qualified interpreter, before commencing his or her duties in a court proceeding, shall take a sworn oath that he or she will make a true and impartial interpretation. The supreme court may approve a uniform oath for qualified interpreters.

(6) Any party to a court proceeding may object to the use of any qualified interpreter for good cause. The court may remove a qualified interpreter for good cause.

(7) The delay resulting from the need to locate and appoint a qualified interpreter may constitute good cause for the court to toll the time limitations in the court proceeding.

(8) (a) Except as provided in par. (b), the necessary expenses of providing qualified interpreters to persons with limited English proficiency under this section shall be paid as follows:

1. The county in which the circuit court is located shall pay the expenses in all proceedings before a circuit court and when the clerk of circuit court uses a qualified interpreter under sub. (3) (d). The county shall be reimbursed as provided in s. 758.19 (8) for expenses paid under this subdivision.

2. The court of appeals shall pay the expenses in all proceedings before the court of appeals.

3. The supreme court shall pay the expenses in all proceedings before the supreme court.

(b) The state public defender shall pay the expenses for interpreters assisting the state public defender in representing an indigent person in preparing for court proceedings.

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905.015 Interpreters for persons with language difficulties or hearing or speaking impairments
If an interpreter for a person with a language difficulty, limited English proficiency, as defined in s. 885.38(1)(b), or a hearing or speaking impairment interprets as an aid to a communication which is privileged by statute, rules adopted by the supreme court, or the U.S. or state constitution, the interpreter may be prevented from disclosing the communication by any person who has a right to claim the privilege. The interpreter may claim the privilege but only on behalf of the person who has the right. The authority of the interpreter to do so is presumed in the absence of evidence to the contrary.

906.04 Interpreters
An interpreter is subject to the provisions of chs. 901 to 911 relating to qualification as an expert and the administration of an oath or affirmation that the interpreter will make a true translation.

938.315 Delays, continuances and extensions
(1) The following time periods shall be excluded in computing time requirements within this chapter:

(h) Any period of delay resulting from the need to appoint a qualified interpreter.

967.09 Interpreters may serve by telephone or video
On request of any party, the court may permit an interpreter to act in any criminal proceeding, other than trial, by telephone or live audiovisual means.

Wisconsin Supreme Court Rules

The Wisconsin Supreme Court has adopted a code of ethics for interpreters working in the Wisconsin courts as Chapter 63 of the Supreme Court Rules, effective July 1, 2002. The code governs the delivery of services by foreign language and sign language interpreters working in the courts of the State of Wisconsin. Its purpose is to define the duties of interpreters and thereby enhance the administration of justice and promote public confidence in the courts.

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Wisconsin case law

State v. Neave, 117 Wis. 2d 359, 344 N.W. 2d 181 (1984). The Wisconsin Supreme Court has held that the right to an interpreter exists "as a matter of judicial administration," concluding that in the interest of fairness and justice, interpreters should assist defendants where necessary. The assistance of an interpreter promotes judicial economy by reducing the risk of appeal on grounds on inaccurate interpretation or failure to appoint an interpreter. The right to an interpreter can only be waived by the defendant personally, in open court, and on the record. If the court determines that an interpreter is necessary, the court must inform the defendant of the right to an interpreter and that one will be provided at public expense if the defendant is unable to afford one. See also State v. Besso, 72 Wis. 2d 335, 240 N.W. 2d 895 (1976).

State v. Xiong Yang, 201 Wis. 2d 721, 549 N.W. 2d 769 (Ct. App. 1996). When a trial court is put on notice that a defendant has a "language difficulty," the court must make a factual determination whether the defendant needs an interpreter because such difficulty prevents the defendant from communicating with counsel, reasonably understanding English testimony, or reasonably being understood in English. The trial court's factual determination does not require an elaborate hearing.

State v. Tai V. Le, 184 Wis. 2d 860, 517 N.W. 2d 144 (1994). The selection of a qualified interpreter is within the discretion of the trial court. If the defendant is indigent, the expense for an interpreter is allocated to the Director of State Courts for in-court proceedings, and to the State Public Defender for out-of-court proceedings.

State v. Santiago, 206 Wis.2d 3, 556 N.W.2d 687 (1996). A defendant is deprived of the ability to present his case to the circuit court and preserve it for appeal when testimony given in Spanish is not translated into English for the record. Without an English translation, the court cannot evaluate whether the substance of a Miranda warning in Spanish was sufficient that the defendant could knowingly and intelligently waive his right to an attorney. When both the accused and the witnesses require an interpreter, the better practice may be to have two interpreters, one for the accused and one for the court.

State v. Patino, 177 Wis.2d 348, 502 N.W.2d 601 (Ct. App. 1993). When a person relies on a translator, the statements of the translator are regarded as the speaker's for hearsay purposes.

State v. Hindsley, 2000 Wi. App. 130, 14-15, 614 N.W. 2d 48 (2000). Expert witnesses testified that for the concept "rights," the interpreter used the sign for "all right" or "okay," and the defendant's responses showed he understood the sign as "all right" or "okay." The interpreter interpreted the defendant's nodding of his head to mean "yes," but in American Sign Language a head nod, by itself, may mean "I understand," "I'm waiting for clarification" or "go ahead," and does not necessarily mean "yes." At no time, one expert testified, did the defendant express that he understood his rights. Another expert characterized the communication between defendant and interpreter as "disconnected." Under these circumstances, the trial court properly concluded that the defendant's waiver of the right to counsel was not knowing and intelligent.

State v. Douangmala, 2002 WI 62, (2002). As Wisconsin's immigrant population grows, obtaining qualified interpreters for an ever-growing, diverse, and multi-language population remains a high priority for the court.  This case "illustrates the necessity of the legislative, executive, and judicial branches of government of this state working together to provide qualified interpreters for persons who cannot, hear, speak, or understand English to preserve their meaningful access to the legal system."45.

State v. Begicevic 270 Wis.2d 675, 678 N.W.2d 293 (2004) Despite officer's knowledge that English was not Begicevic's first language, she made no attempt to locate an interpreter to assist her and when she read the Informing the Accused form to Begicevic, there was no verbatim translation in German of what was being read nor was there any explanation of rights on the form in German to Begicevic. The appellate court said the issue was not a subjective determination of whether the officer believed Begicevic understood what was being said to him, but rather an objective test of whether the officer used reasonable methods to convey the implied consent warnings.

State v. Luis Flores, 275 Wis.2d 275, 683 N.W.2d 93 (2004) Defendant’s inability to speak English does not entitle him to a mental competency hearing, see State v Haskins (139 Wis. 2d 257, 407 N.W.2d 309 (Ct. App. 1987))

State v. Amani Beni, 285 Wis.2d 807, 701 N.W.2d 652 (2005).  With an allegation of inadequate interpreting, the burden is on the appellant to show the interpreter was deficient. A trial court’s discretion in the choice of an interpreter will not be upset unless there is a showing a defendant has been prejudiced by the interpreter’s performance. While the trial court has a duty to choose the most competent and the least biased person available, the defendant must also show that some injustice has resulted because of the appointment of the interpreter.

State v. Lavelle W., 288 Wis.2d 504, 708 N.W.2d 698 (2005). While not a case involving an interpreter, the appellate court said a parent in a TPR case was denied meaningful participation when he was hooked up via telephone from a remote location rather than be personally present.  The court said although Lavelle W. may have been able to hear significantly more than he was unable to hear, it was not sufficient because “periodic or sporadic inaudibility,” significantly truncated his ability to fully comprehend what was going on and hindered his ability to get a feel for the proceedings.

State v. Russ, 709 N.W.2d 483 (2005).  Russ was shackled during his plea and sentencing hearing and said his restraints impeded his ability to communicate by sign language.  He introduced expert testimony who explained 4 factors critical to effective communication through sign language.  The appellate court said he had to show he was in fact unable to communicate not just that he “theoretically” might have had some difficulty to communicate.  The burden is on him, not the state to prove an actual communication lapse.

State v. Revesteijn, 727 N.W.2d 53 (2006) Citing State v Neave, the appellate court said the trial court’s obligation to make a factual determination about the need for an interpreter is triggered only when the court is put on notice the defendant has a language barrier.  Defendant alleged the court was obligated to consider whether he needed an interpreter and obtain his personal waiver of his right to an interpreter.  There was nothing in the transcript suggesting defendant had a language barrier or was unable to understand the plea colloquy or that the court was made aware of any language problem.

State v. Yang, 290 Wis.2d 235, 712 N.W.2d 400 (2006) Court erred when it limited questioning of defendant’s ex-wife during cross-examination, who testified through an interpreter.  Thirteen times during her 31-page testimony, witness asked the interpreter for clarification or help which evidenced her lack of comprehension.  Appellate court said defendant was denied his right to confront witnesses. 

State v. Christopher L, 278 Wis.2d 812, 691 N.W.2d 926 (2006)  Defendant, who had made known to the court his hearing difficulties, used an Assisted Listening Device (ALD) during trial.  While there was some evidence at trial he had problems hearing while using the device, when he turned up the volume on the ALD, it seemed to fix the problem.  Appellant never complained about any inconvenience during the trial.  Appellate court said there is no due process right to an interpreter, there is only a right to a necessary interpreter.

State v. Velazquez-Perez 2004 AP2965 (2007) Appellate court said trial court erred in not granting an evidentiary hearing on his claim that his plea was not entered knowingly, voluntarily, and intelligently.  Defendant moved to withdraw his guilty plea because the interpreter spoke too fast and may have been speaking a different dialect.  The motion contained enough factual allegations to warrant holding an evidentiary hearing to see whether he could prove his claim.

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