PA Supreme Court: Failure to Provide Interpreter for Jury Selection Requires New Trial

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Diaz, upholding the Superior Court’s ruling that a defendant who needed but was not provided with a Spanish interpreter during the first day of jury selection should receive a new trial. The Court ruled that the failure to provide a defendant with an interpreter during a critical stage of trial results in a Sixth Amendment violation and automatically requires a new trial even if the defendant cannot prove prejudice (that the lack of an interpreter actually affected the proceedings). 

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Facts of Diaz

In Diaz, the defendant was charged with rape of a child, endangering the welfare of a child, statutory sexual assault, indecent assault, corruption of minors, and conspiracy. Bucks County prosecutors alleged that the defendant sexually assaulted his girlfriend’s minor daughter multiple times when she was between the ages of ten and fourteen years old.

The defendant spoke some English, but he was not totally fluent. He retained private counsel for the preliminary hearing, and the Magisterial District Justice held the hearing in English without an interpreter. After the preliminary hearing, the defendant requested that his attorney obtain a Spanish interpreter for further proceedings because he felt that he had trouble understanding what happened at the preliminary hearing. 

Prior to the argument on pre-trial motions, the defense attorney requested a Spanish interpreter for the defendant. There was no interpreter available that day, and the trial judge seems to have been upset that the defense attorney made the request at the last minute. After the judge asked why the request had not been made earlier, the defense attorney withdrew the request and informed the court that the defendant would only need an interpreter for his own testimony.

The trial court decided to move forward with the hearing on the pretrial motions and the first day of jury selection without the interpreter, but the judge agreed that an interpreter would be provided on the subsequent days of trial. Despite the defendant repeatedly saying that he did not really understand what was going on, the defense attorney agreed that that would work. The trial judge even mentioned that they should definitely get an interpreter for the second day of trial because “we got a PCRA looking at us in the face.” Nonetheless, the court proceeded with jury selection without an interpreter. In fact, the first day of trial, which took place without the interpreter, included pretrial motions, jury selection, opening statements, and direct and cross examination of the complainant. The defendant received an interpreter for the rest of the trial. 

The jury found the defendant guilty of all charges. He was sentenced to 20-40 years’ incarceration and required to register as a sexually violent predator. The defendant appealed, new counsel was appointed, and the new attorney tried to raise the ineffective assistance of counsel on appeal. Because a criminal defendant generally cannot do that in Pennsylvania, the Superior Court dismissed the appeal. 

The PCRA Petition

The defendant then filed a PCRA petition alleging the ineffective assistance of counsel, and the trial court appointed counsel for the PCRA. PCRA counsel amended the petition to raise numerous claims of ineffective assistance. This led to the reinstatement of the defendant’s appellate rights. The direct appeal was denied, and counsel then filed a second PCRA petition alleging that the defendant should receive a new trial because trial counsel provided the ineffective assistance of counsel in failing to properly request an interpreter for the whole trial. 

The trial court held an evidentiary hearing in which it heard from various witnesses as to whether the defendant could understand and speak English. The court eventually concluded that the defendant did not speak English well enough to have his trial without an interpreter. Therefore, the trial court granted the PCRA petition and awarded a new trial for the defendant, finding that counsel was ineffective in failing to insist on an interpreter. 

The Appeal

The Commonwealth appealed the granting of the PCRA Petition, and the Superior Court affirmed. The Commonwealth appealed again to the Pennsylvania Supreme Court, and the Supreme Court accepted the appeal. 

The Supreme Court’s Decision 

The Supreme Court upheld the decision of the trial court, finding that the defendant should have received an interpreter for the entire trial. In general, there are two standards for a PCRA Petition when dealing with the ineffective assistance of counsel. First, there is the general Strickland standard in which a defendant must show 1) a claim of arguable merit, 2) that counsel had no reasonably strategic basis for acting or failing to act, and 3) that the defendant actually suffered prejudice. This standard applies to most situations – for example, the failure to litigate a motion, the failure to object to certain evidence, and the failure to present witnesses or investigate potential defenses. This standard is more difficult to meet because a defendant not only has to show that the defense attorney should have done something differently, but also that it really could have made a difference in the proceedings.

Second,, there are some errors that are so fundamental to the right to a trial that they constitute structural errors and do not require a showing of prejudice. This standard applies in circumstances including: 1) the actual or constructive denial of counsel at a critical stage of trial; 2) when counsel fails entirely to provide meaningful adversarial testing of the prosecution’s case, and 3) circumstances wherein no lawyer, regardless of general competency, could have provided effective assistance of counsel. This also includes situations in which a defendant is prevented from conferring with counsel. 

Here, the Pennsylvania Supreme Court found that the failure to provide an interpreter constituted a structural error in the proceedings because the defendant had no ability to communicate with his lawyer regarding the case during the trial. Therefore, defense counsel failed to provide the effective assistance of counsel by failing to object to the court proceeding through the first day of trial without an interpreter. The defendant will receive a new trial. 

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