Thursday, February 14, 2008
The Court of Appeals of Alaska's recent opinion in Vuig Gui Tsen v. State, 2008 WL 341649 (Alaska.App. 2008), provides a good example of how courts frequently ignore the legislative history to their rules of evidence when it doesn't fit with their view of a case, even though they cite this history with approval when it serves their purposes. In Vuig Gui Tsen, the defendant ran an escort service/massage parlor in the Spenard area of Anchorage, Alaska. After two of his female employees were arrested for prostitution, they agreed to aid the police by arranging to purchase cocaine from Tsen. Tsen subsequently sold cocaine to the women and was arrested and charged with two counts of third-degree controlled substance misconduct (sale of cocaine, and possession of cocaine for sale) and one count of third-degree promoting prostitution. During a pre-trial conference and at trial, Tsen's attorney, Assistant Public Defender John A. Bernitz, notified the judge that Tsen wanted to have a Vietnamese interpreter during trial. The attorney noted that while Tsen spoke English, he was a native Vietnamese and language gets more complicated and quicker at trial. The judge rejected the request, concluding, inter alia, that while an interpreter could certainly provide assistance to Tsen, an interpreter's presence was not required because Tsen clearly had command of the English language. After Tsen was convicted on all three counts, he appealed, claiming, inter alia, that the trial judge violated his right to due process by refusing to order word-for-word interpretation of the jury voir dire and the trial testimony.
In its opinion, the Court of Appeals of Alaska proceeded to consider federal case law, which generally holds that the decision of whether to order word-for-word interpretation of trial testimony hinges on many variables, chief among them (1) the extent to which the defendant can comprehend spoken English ( i.e., understand the English speech of other people), (2) the extent to which the defendant can express himself or herself in English, and (3) the degree to which the trial testimony will present complex or subtle issues of fact that will require the defendant's input ( i.e., the defendant's participation in formulating the defense case and in devising the cross-examination of adverse witnesses)." The court then found that the trial judge's opinion was proper because, inter alia, Tsen's comprehension of Enlish was not so deficient as to make his trial fundamentally unfair.
But why did the court rely upon federal case law, rather than Alaska case law? Well, the court noted that Alaska law on the subject of interpreters was still undefined, with no published Alaska appellate decisions in the area. At the same time, Alaska Rule of Evidence 604 does set forth the rule for interpreters at trial. And the Commentary to Alaska Rule of Evidence 604, written by its main drafter, Professor Stephen A. Saltzburg, indicates, inter alia, that “[a]ppointment of an interpreter for [an] indigent defendant is probably constitutionally required if the defendant's understanding of the proceedings against him depends on it." The Court of Appeals of Alaska noted this language, but it also noted that the Introduction to the Commentary to the Alaska Rules of Evidence made clear that the Supreme Court of Alaska had neither adopted nor approved the Commentary. The Court of Appeals thus failed to ascertain whether the Commentary compelled a different test for whether an interpreter was required and assumed (without deciding) that Alaska law mirrors federal law on the issue of a criminal defendant's right to the assistance of an interpreter.
While the Court of Appeals is correct that the Supreme Court of Alaska has neither adopted nor approved the Commentary to the Alaska Rules of Evidence, it has frequently relied upon the Commentary in reaching decisions. Indeed, in one case, Marron v. Stromstad, 123 P.3d 992, 1005 n.50 (Alaska 2005), the Supreme Court of Alaska even found the reasoning in an amicus brief written by Saltzburg to be "especially persuasive" because he was the main drafter of the Alaska Rules of Evidence. The Supreme Court of Alaska is not alone in reaching decisions based upon the commentary as the Court of Appeals of Alaska did the same in numerous cases before Vuig Gui Tsen. See, e.g., Ryan v. State, 899 P.2d 1371, 1374 (Alaska.App. 1995). The court's decision in Vuig Gui Tsen thus seems to be unsatisfactory in its dismissiveness of the Commentary.