Photo by Flickr user Elvert Barnes
This year marks the 50th anniversary of Miranda v. Arizona, the landmark US Supreme Court case that required law enforcement officials to read you your rights upon every arrest. Since that case, any statement made to law enforcement is inadmissible if the defendant was not first informed of his or her Fifth and Sixth Amendment rights—the right against self-incrimination and the right to consult with an attorney before answering any questions.
Even if you’ve never been arrested, you’ve seen enough movies and television police procedurals to know the familiar refrain: You have the right to remain silent, anything you say can and will be used against you, and so on.
But for primarily Spanish-speaking people in the United States—which has become the world’s second-largest Spanish-speaking country after Mexico—those rights can easily get lost in translation. In countless cases across the US, Spanish-speaking defendants have been read incorrect or mistranslated versions of their rights, where butchering words like “free” and “right” can cost someone their best shot in court.
Now that could all change: The American Bar Association (ABA), at its annual conference earlier this month, voted unanimously to create a uniform Spanish-language Miranda warning and urged law enforcement agencies to adopt such a warning for defendants who do not speak English well or at all.
“As we looked into it, we discovered that too often Miranda is mistranslated, and that shouldn’t happen,” Alexander Acosta, who chairs the ABA’s Special Committee on Hispanic Legal Rights and Responsibilities, told VICE. “This is something that should be very straightforward.”
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Every year, law enforcement across the country use Spanish-language Miranda warnings in 874,000 arrests, according to a report from the committee. In many of those instances, inaccurate translations that could potentially violate a person’s civil rights can lead to excluded statements in court. But countless other incidents slip through the cracks, where a person did not understand their rights and their incriminating statements are used anyway.
“Even if there is a one-in-1,000 error rate, you can imagine how significant that would be nationally,” Acosta said.
The problem is not uncommon: The committee’s report lists dozens of instances of bad translations, including the use of Spanglish, and completely made-up Spanish words like “silento.” (The Spanish word for silent is “silencio.”) In other instances, words were found to be mistranslated, according to the ABA Hispanic committee’s report: One Ohio case used the word for right-hand side, instead of a legal right. In a few different cases, defendants were told they had the right to “apuntar un abogado“—to “point at” a lawyer, rather than to appoint one.
In other situations, bad translations can lead to complete inaccuracy as to what rights the Fifth and Sixth Amendments even afford you. In Minnesota, a defendant was told of a right “not to say nothing.” Others were told of a “right to answer questions.”
One high-profile case in 2013 led to some clarification on the issue of Miranda translation. That case stemmed from a 2008 incident in which defendant Jeronimo Botello-Rosales and four others were arrested and charged with conspiracy to manufacture more than 1,000 marijuana plants. Botello was also charged with illegal possession of a firearm, according to court records.
Upon arrest, Botello-Rosales was read his rights, first in English, and then in Spanish. Officers said he waived those rights and proceeded to spout off a number of incriminating statements, including his alleged connection to a marijuana operation and about his immigration status, according to a brief.
Botello-Rosales’s lawyer, Michael R. Levine, filed a motion to suppress his client’s post-arrest statements, something not uncommon for such a case. Here, though, Levine had the court interpreter listen to the Spanish-language warning read by the arresting detective on the stand.
“He finished, and then I turned to the interpreter who was in the back, and I said, ‘Well, how did it go?’ And she said, ‘Well, actually, he made a couple of mistakes,'” Levine told VICE. “And I immediately perked up and said, ‘What do you mean mistakes?'”
It turned out that, in his warning, the detective garbled the translation and misinterpreted the word “free,” as in “without payment.” According to court documents, the detective informed Botello-Rosales, “If you don’t have the money to pay for a lawyer, you have the right. One who is free could be given to you.” But the version of “free” he used was the Spanish word “libre,” which would be interpreted as “available,” or “at liberty” to provide service. The Spanish word for “could” instead of “would” was also in dispute, as it is the government’s obligation to provide a free attorney, not a choice.
The detective later admitted that he didn’t always deliver the Miranda warnings the same way, but added that he always used the word “libre” in that way, according to court documents.
“He’d been doing it wrong for 25 years,” Levine said. “He thought, honestly, that the word ‘libre’ in Spanish meant ‘at no cost,’ which it doesn’t.”
The district court nonetheless denied the motion to throw out his post-arrest statements, finding that Botello-Rosales probably understood the English Miranda warning. He pleaded guilty, on the condition that he could appeal the judge’s order denying the motion to suppress.
On appeal, the Ninth Circuit panel reversed the lower court’s decision. The panel’s opinion effectively said that Miranda rights must be translated correctly in order for them to be valid—reciting them properly in English is not enough. The case was remanded, and Botello-Rosales took a plea deal for a lesser sentence, according to Levine.
“This is something that’s given probably thousands and thousands of times every year, to a myriad of defendants, and there’s no reason to assume that they’re not getting it wrong,” Levine told VICE.
That case and others illustrate the need for a standard of some kind. Once the ABA commission puts together an official translation with help from law enforcement experts, it will look to promulgate the translation out through state attorneys general and local bar associations, according to Acosta.
“I think at the end of the day, if the American Bar Association says, ‘This is one that we have vetted and we support,’ I think many law enforcement agencies would certainly use that,” Acosta told VICE. “Because it provides them a safeguard.”
Of course, even a consistent Spanish-language warning is not a cure-all solution. For example, while the warning may be uniform, the Spanish language itself is not. The committee is working on trying to address regional or dialectal differences in its implementation to help mitigate this. And of course, there’s human error: In some cases cited by the commission, even printed-out Spanish-language Miranda cards contained errors.
But the ABA’s vote this month was a promising first step that could lead to translations not just in Spanish, but ideally in other languages—and a decision that defendants, attorneys, and judges could benefit from. During remarks to the commission ahead of the vote, Sixth Circuit Court of Appeals Judge Bernice Donald talked about her stint as a federal judge and said she hopes that her time on the bench was not marred by mistranslations.
“We have an opportunity with the passage of this resolution to make certain that Miranda is more than words,” Donald said, echoing the theme of this year’s ABA conference. “I spent 15-and-a-half years as a judge on the United States District Court, where I heard cases, and we had one Spanish-language interpreter. I hope that we were not one of the courts that engaged in any of those mistranslations. But this is serious.”