Section 105. Waiver of Interpreter

(a) Waiver by a party.—A party with limited English proficiency or party who is deaf or hard of hearing may waive the right to an interpreter provided the waiver is conducted in the presence of the presiding judicial officer and the party seeking to waive is represented by counsel or has knowingly waived the right to counsel. The presiding judicial officer shall ascertain from the party with limited English proficiency or party who is deaf or hard of hearing whether the waiver is knowing, voluntary and intelligent. If the judicial proceeding is conducted in a court of record, the foregoing determination shall be made on the record. The party with limited English proficiency or party who is deaf or hard of hearing must be provided with an interpreter during the waiver process. In addition, the waiver shall be in writing signed by the party with limited English proficiency or party who is deaf or hard of hearing, with a representation that the party was told of the right to an interpreter and that the party chose not to have an interpreter at the judicial proceeding. The written waiver shall be on the form provided by the Court Administrator for this purpose and shall be made part of the record of the judicial proceeding.

(b) Waiver by a non-party.—When a non-party who is entitled to an interpreter under these regulations seeks to waive the right to an interpreter the provisions of subsection (a) above should be followed with the exception that counsel need not be present.

Comment

When persons with limited English proficiency or persons who are deaf or hard of hearing waive their right to an interpreter pursuant to § 105 they are divesting themselves of an important due process safeguard. For this reason, the presiding judicial officer should take great care to ensure that the person’s waiver is knowing, voluntary and intelligent. When deciding whether to permit waiver the presiding judicial officer should consider not only the needs of the person with limited English proficiency or person who is deaf or hard of hearing but also the needs of the presiding judicial officer and others involved in the proceedings to accurately understand that person. If the presiding judicial officer feels that the interpreter is necessary for the presiding judicial officer or others involved in the proceedings to accurately understand the person with limited English proficiency or person who is deaf or hard of hearing, the waiver request should be denied.