OPINION
BAKER, Judge.
Appellant-defendant Jesus Arrieta brings this interlocutory appeal from the trial court's order refusing to appoint an interpreter at government expense. Ar-rieta argues that a non-English-speaking criminal defendant is entitled to the appointment of an interpreter at government expense whether or not the defendant has established indigencey. Finding that this is a matter best left to the legislature and that nothing in statutory or constitutional law requires a trial court to pay for an interpreter for a defendant who has not established financial need, we affirm the judgment of the trial court.
FACTS
On June 10, 2005, Arrieta was arrested for class A felony dealing in cocaine. At a [1287]*1287preliminary hearing held that same day, Arrieta indicated that he did not speak English. Bond was set at "$50,000 cash, surety," and on June 13, 2005, Arrieta posted bond. Appellant's App. p. 3. At a June 13 hearing, Arrieta indicated his intention to retain private counsel. On June 14, 2005, the State filed the charging information. At the initial hearing, also held on June 14, Arrieta's attorney and a court-funded translator were present.
On August 31, 2005, the trial court notified Arrieta that a certified translator would need to be present for the upcoming pretrial hearing and that it would be Ar-rieta's responsibility to pay for that translator. At the pretrial hearing on September 8, 2005, Arrieta objected to paying for the translator and no translator was present, so the trial court continued the hearing. The trial court advised Arrieta that because of the county's dire financial needs, the court automatically provides translators only for initial hearings because at that time, there has not yet been an opportunity to make an indigeney determination. For further proceedings, the trial court provides a translator only if the defendant has established financial need. Absent a showing of indigency, defendants are required to pay for their own translators.
On October 27, 2005, Arrieta filed a motion to provide translator services for all future proceedings in his case, informing the trial court that he speaks very little English and is unable to understand the proceedings or assist in his defense without an interpreter. The trial court held a hearing on Arrieta's motion on November 16, 2005, during which the court made the following statements:
[The Court will always respect your right and your client's right to have a translator. But the issue here is who's to pay for them. The Court does pro-
vide translators for individuals who are indigent and for individuals who have established that they do not have financial abilities to pay for a translator. But that's something that needs to be brought to the Court's attention....
ock
The Court will never deny an interpreter because I do agree and concur that it's up, that everybody has the right to an interpreter. The only question is who pays for it.
Hock ok
... The only issue at any stage beyond the initial hearing, because the Court does pay for interpreters at the initial hearings for all matters just to make sure because we don't have time to make the determination of financial abilities. But it's up to the defendant to show and establish that they have a financial need. Just as if we appoint a public defender basically there has to be a showing of need. -
Tr. p. 4-7. The trial court denied Arrie-ta's motion 'and certified the order for interlocutory appeal.
DISCUSSION AND DECISION
Whether trial courts are required to provide interpreters for non-English-speaking criminal defendants absent a showing of indigeney is an issue of law to which we apply a de novo standard of review. See Brown v. State, 677 N.E.2d 517, 518 (Ind.1997) (holding that issues of law are reviewed de novo).
It is not in dispute that a non-English-speaking criminal defendant has a right to have court proceedings translated for him. Martinez Chaves v. State, 534 N.E.2d 731, 736 (Ind.1989). An interpreter
enables a non-English speaking defendant to understand the trial, provides a [1288]*1288means of communication between the defendant and his attorney, and translates the defendant's testimony if he testifies. The interpreter is necessary to implement fundamental notions of due process such as the right to be present at trial, the right to confront one's aceus-ers, and the right to counsel.
Id. at 737 (citation omitted). Moreover, the State and the trial court agree that an indigent, non-English-speaking criminal defendant is entitled to the services of an interpreter at court expense. Appellee's Br. p. 5.
As to a criminal defendant who has not established financial need, we observe that non-indigent defendants are not entitled to court-appointed attorneys or expert witnesses. Lamonte v. State, 839 N.E.2d 172, 176 (Ind.Ct.App.2005). Thus, the mere fact that a right-such as the right to counsel-is fundamental does not necessarily mean that the exercise of that right must be subsidized by the government under all cireumstances. Rather, it is only when the defendant is without financial ability to exercise that right that it must be provided by the government at no cost to him. In concluding that there is no federal constitutional right to a court-appointed interpreter absent a showing of indigency, the Second Circuit commented as follows:
We are aware that trying a defendant in a language he does not understand has a Kafka-like quality, but [the defendant's] ability to remedy that situation dissipates substantially-perhaps completely-any feeling of unease.... [Wle doubt that [the defendant's] claimed absolute constitutional right to an interpreter is stronger than the absolute right to a court-appointed counsel; the latter is held only by the indigent. ...
United States v. Desist, 384 F.2d 889, 902 (2d Cir.1976). Similarly, we conclude that the Indiana Constitution does not require the court to provide an interpreter at government expense for a non-English-speaking criminal defendant who has not established indigency.
Although Arrieta directs our attention to a provision of the United States Code regulating the use of interpreters in federal courts, see 28 U.S.C. § 1827, there is no analogous Indiana statute requiring court-funded interpreters in State courts.1 Indeed, although the statute governing the appointment and use of interpreters in civil cases explicitly provides that if the trial court appoints an interpreter the court may determine the manner in which the interpreter will be paid-including the person responsible for the cost-there is no similar statute applicable to criminal proceedings. 2 Ind.Code § 84-45-1-4.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
BAKER, Judge.
Appellant-defendant Jesus Arrieta brings this interlocutory appeal from the trial court's order refusing to appoint an interpreter at government expense. Ar-rieta argues that a non-English-speaking criminal defendant is entitled to the appointment of an interpreter at government expense whether or not the defendant has established indigencey. Finding that this is a matter best left to the legislature and that nothing in statutory or constitutional law requires a trial court to pay for an interpreter for a defendant who has not established financial need, we affirm the judgment of the trial court.
FACTS
On June 10, 2005, Arrieta was arrested for class A felony dealing in cocaine. At a [1287]*1287preliminary hearing held that same day, Arrieta indicated that he did not speak English. Bond was set at "$50,000 cash, surety," and on June 13, 2005, Arrieta posted bond. Appellant's App. p. 3. At a June 13 hearing, Arrieta indicated his intention to retain private counsel. On June 14, 2005, the State filed the charging information. At the initial hearing, also held on June 14, Arrieta's attorney and a court-funded translator were present.
On August 31, 2005, the trial court notified Arrieta that a certified translator would need to be present for the upcoming pretrial hearing and that it would be Ar-rieta's responsibility to pay for that translator. At the pretrial hearing on September 8, 2005, Arrieta objected to paying for the translator and no translator was present, so the trial court continued the hearing. The trial court advised Arrieta that because of the county's dire financial needs, the court automatically provides translators only for initial hearings because at that time, there has not yet been an opportunity to make an indigeney determination. For further proceedings, the trial court provides a translator only if the defendant has established financial need. Absent a showing of indigency, defendants are required to pay for their own translators.
On October 27, 2005, Arrieta filed a motion to provide translator services for all future proceedings in his case, informing the trial court that he speaks very little English and is unable to understand the proceedings or assist in his defense without an interpreter. The trial court held a hearing on Arrieta's motion on November 16, 2005, during which the court made the following statements:
[The Court will always respect your right and your client's right to have a translator. But the issue here is who's to pay for them. The Court does pro-
vide translators for individuals who are indigent and for individuals who have established that they do not have financial abilities to pay for a translator. But that's something that needs to be brought to the Court's attention....
ock
The Court will never deny an interpreter because I do agree and concur that it's up, that everybody has the right to an interpreter. The only question is who pays for it.
Hock ok
... The only issue at any stage beyond the initial hearing, because the Court does pay for interpreters at the initial hearings for all matters just to make sure because we don't have time to make the determination of financial abilities. But it's up to the defendant to show and establish that they have a financial need. Just as if we appoint a public defender basically there has to be a showing of need. -
Tr. p. 4-7. The trial court denied Arrie-ta's motion 'and certified the order for interlocutory appeal.
DISCUSSION AND DECISION
Whether trial courts are required to provide interpreters for non-English-speaking criminal defendants absent a showing of indigeney is an issue of law to which we apply a de novo standard of review. See Brown v. State, 677 N.E.2d 517, 518 (Ind.1997) (holding that issues of law are reviewed de novo).
It is not in dispute that a non-English-speaking criminal defendant has a right to have court proceedings translated for him. Martinez Chaves v. State, 534 N.E.2d 731, 736 (Ind.1989). An interpreter
enables a non-English speaking defendant to understand the trial, provides a [1288]*1288means of communication between the defendant and his attorney, and translates the defendant's testimony if he testifies. The interpreter is necessary to implement fundamental notions of due process such as the right to be present at trial, the right to confront one's aceus-ers, and the right to counsel.
Id. at 737 (citation omitted). Moreover, the State and the trial court agree that an indigent, non-English-speaking criminal defendant is entitled to the services of an interpreter at court expense. Appellee's Br. p. 5.
As to a criminal defendant who has not established financial need, we observe that non-indigent defendants are not entitled to court-appointed attorneys or expert witnesses. Lamonte v. State, 839 N.E.2d 172, 176 (Ind.Ct.App.2005). Thus, the mere fact that a right-such as the right to counsel-is fundamental does not necessarily mean that the exercise of that right must be subsidized by the government under all cireumstances. Rather, it is only when the defendant is without financial ability to exercise that right that it must be provided by the government at no cost to him. In concluding that there is no federal constitutional right to a court-appointed interpreter absent a showing of indigency, the Second Circuit commented as follows:
We are aware that trying a defendant in a language he does not understand has a Kafka-like quality, but [the defendant's] ability to remedy that situation dissipates substantially-perhaps completely-any feeling of unease.... [Wle doubt that [the defendant's] claimed absolute constitutional right to an interpreter is stronger than the absolute right to a court-appointed counsel; the latter is held only by the indigent. ...
United States v. Desist, 384 F.2d 889, 902 (2d Cir.1976). Similarly, we conclude that the Indiana Constitution does not require the court to provide an interpreter at government expense for a non-English-speaking criminal defendant who has not established indigency.
Although Arrieta directs our attention to a provision of the United States Code regulating the use of interpreters in federal courts, see 28 U.S.C. § 1827, there is no analogous Indiana statute requiring court-funded interpreters in State courts.1 Indeed, although the statute governing the appointment and use of interpreters in civil cases explicitly provides that if the trial court appoints an interpreter the court may determine the manner in which the interpreter will be paid-including the person responsible for the cost-there is no similar statute applicable to criminal proceedings. 2 Ind.Code § 84-45-1-4. Thus, it is apparent that our legislature has made a policy decision to require trial courts to provide interpreters at government expense only when the defendant is indigent. Any change in that policy is best made by the legislature, not by the courts.
[1289]*1289Finally, Arrieta argues that if a non-indigent defendant is forced to pay for his own translator, he may hire someone, such as a family member or friend, who is not skilled or who is emotionally involved to an extent that her ability to interpret effectively, accurately, and impartially is adversely affected. But, as here, a trial court may permit only certified interpreters to be used. If a defendant is unable to afford a certified interpreter, then the trial court would find the defendant to be indigent and would, consequently, provide a court-funded interpreter.
Here, Arrieta has not attempted to demonstrate indigency despite the trial court's invitation to do so. Indeed, the only evidence in the record on appeal, while not dispositive, suggests that Arrieta is not indigent-he posted bond and hired a privately-retained attorney. Arrieta has not attempted to establish that these expenditures have exhausted all of his available funds or that he is otherwise indigent. Under these circumstances, the trial court properly denied his request to provide him with a court-funded interpreter.
The judgment of the trial court is affirmed.
CRONE, J., concurs.
VAIDIK, J., dissents with opinion.