The New Jersey Supreme Court continued in relevant part: Applying those principles to the newly revised LAP, the Court sets forth guidelines and factors to assist trial courts in deciding whether VRI should be used during criminal jury trials. Consistent with New Jersey’s jurisprudence to ensure all court users have equal access to court proceedings, there should be a presumption of in-person interpreting services for criminal jury trials.
In considering whether to proceed to a jury trial with in-person or remote interpreting, trial courts should consider a nonexclusive list of factors: (1) the nature, length, and complexity of the trial; (2) the number of parties and witnesses involved; (3) whether an interpreter is available to interpret in person at trial; (4) the impact any substantial delay in obtaining an in-person interpreter would have on the defendant and on third-parties such as co-defendants or victims; (5) whether the defendant tentatively plans to testify; (6) the financial costs associated with in-person interpreting as compared to remote interpreting; and (7) the interpreters’ position as to whether they believe they can adequately fulfill their duties to interpret accurately and meet professional standards while interpreting virtually.
In the rare cases in which VRI is used for a criminal jury trial, guardrails should be put in place to ensure a fair trial for defendants, and a trial court’s decision to use remote instead of in-person interpreting services should be approved by the Assignment Judge or Presiding Judge. To the extent that costs are a consideration, the vicinage should consult with the Administrative Office of the Courts for further guidance.
The Court remands this matter to the trial court for reconsideration of whether VRI is appropriate here. The Court stresses the difference between pre-trial proceedings governed by Rules 3:9 to :13 and criminal trials governed by Rules 3:14 to :19, as well as the obstacles that virtual interpreting may create for defendants to communicate confidentially and spontaneously with defense counsel. In addition to the Kaqchikel interpreter’s opinion and the costs involved, all other factors set forth by the Court should be considered in assessing the propriety of virtual interpretation during a criminal jury trial; no single factor is dispositive.
The case is remanded to the trial court. Chief Justice Rabner, along with Justices Patterson, Solomon, Wainer Apter, and Judge Sabatino joined in Justice Pierre-Louis’s opinion. Justice Fasciale did not participate.
A cynical concern for cases like this would be that a defendant may pretend to be having audio or related difficulties in understanding the interpreter. If the defendant and the interpreter are the only two parties that understand the language at issue, it makes for difficult decision-making by the trial judge.