The title of this article is of course a slight modification of a line contained in chapter 4, paragraph 1 of “The Trial” by Franz Kafka. The picture comes from a leaked photo from a Texas courthouse shows 37 people accused of illegally entering the US being processed all at once. This leaked photograph shows 37 defendants in orange prison jumpsuits shackled at the hands and feet to be processed en masse as part of the ongoing US clampdown on illegal immigration. The image, leaked to the media, gives an unfamiliar glimpse into “Operation Streamline,” a prosecution system in which up to 70 defendants in immigration cases can be charged and sentenced at once.
It is disgusting display in an American court. Anyone who believes in justice should revolt against such a system that allows this procedure.
The initial issue arising from this procedure is whether someone who does not speak English (regardless of their primary language), or has English as a 2nd language, can make a knowing, voluntary and intelligent waiver of rights necessary to enter a guilty plea.
Unlike the Fourth Amendment, the Fifth Amendment applies to each “person.” Accordingly, the Fifth Amendment applies to all persons within the United States, irrespective of their immigration status. See Plyler v. Doe, 457 U.S. 202, 210 (1982); Wong Wing v. United States, 163 U.S. 228, 237 (1896). The Supreme Court has recently reaffirmed that resident aliens in the United States “are entitled to the same protections under the [Self-Incrimination] Clause as citizens.” United States v. Balsys, 524 U.S. 666, 671 (1998) Similarly, Miranda protects aliens, lawfully present or otherwise, against the inherent pressures of custodial interrogation. See United States v. Moya, 74 F.3d 1117, 1119 (11th Cir. 1996); Barrera-Echavarria v. Rison, 44 F.3d 1441, 1449 (9th Cir. 1995); United States v. Henry, 604 F.2d 908, 914 (5th Cir. 1979).
This “concept” that has “become part of our national culture” is the notion that individuals enjoy a right to remain silent when questioned by police officials. Dickerson v. United States, 530 U.S. 428, 443 (2000). A clear statement of Miranda rights are critical to the integrity of the American legal system. After all, if someone is not aware of his Fifth Amendment right against self-incrimination, then the right may as well not exist. Miranda v. Arizona, 384 U.S. 436, 466 ( 1966). Thus, Justice Scalia, a critic of Miranda, found it “implausible” that in “the modern age of frequently dramatized ‘Miranda‘ warnings,” a “person under investigation may be unaware of his right to remain silent[.]” Brogan v. United States, 522 U.S. 398, 405 (1998). Clearly, “right to remain silent sounds like a bedrock principle, and everyone knows about it.” Orin Kerr, Do You Have A Right to Remain Silent? Thoughts on the “Sleeper” Criminal Procedure Case of the Term, Salinas v. Texas, THE VOLOKH CONSPIRACY (June 17, 2013).
In the case of People v. Gutierrez, 137 Cal. App. 3d 542, 546, 187 Cal. Rptr. 130, 132 (Cal. Ct. App. 1983) it was found that where a trial court’s does not allow defense counsel to ask a defendant’s exact words in Spanish violated the Sixth Amendment. This is important because of critical differences between the English language and the Spanish language.
For instance, there is the problem of false cognates in the Miranda warnings. A cognate is an easy word to remember because it looks and means the same thing as a word you already know. The Spanish verb “apuntar” looks like the English word “to appoint.” “Apuntar,” however, does not meant “to appoint”; it means “to point to.” The proper Spanish verb for “to appoint” is “otorgar.” State v. Santiago, 206 Wis.2d 3, 18, 556 N.W.2d 687, 691 (1996) (discussing the “apuntar” false cognate), see also United States ex rel. Verdin v. O’Leary, 1990 WL 103653, * 7 (N.D. Ill. July 3, 1990) (noting the difference between the Spanish words for “to point to” and “to appoint”), rev’d, 972 F.2d 1467 (7th Cir. 1992).
Likewise, there can be a problem in translation if the target language may have two or more different words for two or more different meanings of an English word. In State v. Ramirez, the interpreter used the Spanish word for “the right hand side” (“derecha”) instead of the Spanish word for “right” in the legal sense (“derecho”). See State v. Ramirez, 135 Ohio App. 89, 1999 WL 1313670, *4 (Ohio Ct. App. Dec. 27, 1999).Additionally, the interpreter told the suspect in Spanish that he had rights underneath (“bajo”) the law in a physical sense rather than on the basis of (“de acuerdo con”) the law. Id
Tell me than did this mass appearence in a court allow for free, voluntary and intelligent pleas?