Subchapter 1. GENERAL PROVISIONS
Sec.
101. Scope.
102. Definitions.
103. Confidentiality of Communications.
104. Remote Interpretation.
105. Waiver of Interpreter.
106. Oath for Interpreters.
107. Cost of Providing Interpreters for Persons with Limited English Proficiency.
108. Costs of Providing Interpreters for Persons who are Deaf or Hard of Hearing.§ 101. Scope.
These regulations are enacted under the Language Access Plan for the Unified Judicial System (UJS-LAP) and 42 Pa.C.S. § § 4411 and 4431 (relating to duties of Court Administrator) and shall govern the appointment and use of interpreters for persons with limited English proficiency and persons who are deaf or hard of hearing in all court proceedings within the Unified Judicial System (UJS).
Comment See also Rules 250—252 and 260—263 of the Pennsylvania Rules of Judicial Administration regarding disability and language access.
Source The provisions of this § 101 amended November 22, 2021, effective January 1, 2022, 51 Pa.B. 7415. Immediately preceding text appears at serial page (390519).
§ 102. Definitions.
For purposes of these regulations:
(a) Appellate Court Prothonotary means the prothonotary responsible for the appellate court in which the judicial proceeding is conducted or his or her designee.
(b) Certified Interpreter means a person who is certified in accordance with this chapter.
(c) Court Administrator means the Court Administrator of Pennsylvania.
(d) Deaf or hard of hearing means a hearing loss or impairment of speech that creates an inability to understand or communicate the spoken English language.
(e) Direct victim means an individual against whom a crime has been committed or attempted and who, as a direct result of the criminal act or attempt, suffers physical or mental injury, death, or the loss of earnings.
(f) District Court Administrator means the court administrator responsible for the administration of the courts of the judicial district in which the judicial proceeding is conducted or his or her designee.
(g) Immediate family member means a person other than a principal party in interest who is a spouse, child, parent, grandparent, or guardian of a principal party in interest.
(h) Interpret means either:
(1) within the context of court interpreters for persons with limited English proficiency, to convey spoken and written English into the language of the person with limited English proficiency and to convey spoken and written statements by that person into spoken English; or
(2) within the context of court interpreters for persons who are deaf or hard of hearing, to convey spoken English in a manner understood by the deaf or hard of hearing person through, but not limited to, American Sign Language and transliteration or any other process, procedure, or means of communication used to convey the communications made by the deaf or hard of hearing person into spoken English.
(i) Interpreter includes both a certified interpreter and an otherwise qualified interpreter for persons with limited English proficiency and the deaf or hard of hearing.
(j) Judicial proceeding means an action, appeal, or proceeding in any court of the Commonwealth of Pennsylvania conducted by a presiding judicial officer as defined by subsection (o).
(k) Notice of Language Rights means a multilingual written notice that informs an individual of the right to an interpreter at no cost and how to request an interpreter.
(l) Otherwise qualified interpreter means a person who meets the pertinent requirements of this chapter. As with certified interpreters, otherwise qualified interpreters should be chosen from AOPC’s Interpreter Certification Program (ICP) roster.
(m) Person who is deaf or hard of hearing means a principal party in interest or a witness who is deaf or hard of hearing.
(n) Person with limited English proficiency means a principal party in interest or a witness who speaks exclusively or primarily a language other than English and is unable to sufficiently speak and understand English so as to fully participate and be understood in a judicial proceeding.
(o) Presiding judicial officer includes justices, judges, magisterial district judges, and appointive judicial officers, such as arbitrators and other like officers.
(p) Principal party in interest means a person involved in a judicial proceeding who is:
(1) a named party or a fiduciary for a named party;
(2) a direct victim in a criminal proceeding or a proceeding pursuant to the Juvenile Act, 42 Pa.C.S. Ch. 63 (relating to juvenile matters);
(3) a parent, guardian, or custodian of a minor or incapacitated person who is:
(i) a party;
(ii) a direct victim in a criminal proceeding or a proceeding pursuant to 42 Pa.C.S. Ch. 63; or
(iii) a witness.
(q) Roster means the list of certified and otherwise qualified interpreters maintained and distributed by the Court Administrator.
(r) Staff Interpreter means a certified interpreter who is an employee of the appellate court or judicial district and whose duties include providing services as an interpreter and functions related to interpreting.
(s) Transliteration means to convey spoken or written English in an English-based sign language system.
(t) Witness means a person who testifies in a judicial proceeding.
Comment The Administrative Office of Pennsylvania Courts’ (AOPC) Interpreter Certification Program roster is available on the Language Access & Interpreter Program page of the UJS website, http://www.pacourts.us.
The definition of ‘‘Certified Interpreter’’ set forth in subsection (b) contains the requirement that the interpreter be certified by the Court Administrator. An interpreter who is certified pursuant to another jurisdiction or organization’s policies is not a certified interpreter under these regulations if that individual has not been certified by the Court Administrator. Therefore, persons charged with applying these regulations should take care to confirm that an interpreter who purports to be certified has, in fact, been certified by the Court Administrator.
A ‘‘Staff Interpreter’’ pursuant to subsection (r) is a full-time employee of an appellate court or judicial district whose duties include providing interpretation services. Persons employed as staff interpreters are required to be certified in their language of expertise by the Court Administrator in order to attain certified status under these regulations, if such certification is available.
References related to transliterators can be found in Schedule F (Pennsylvania Rules of Professional Conduct for Judiciary Interpreters.) Oral transliteration means conveying spoken English by using speech reading and not sign language. Please note that it differs from ‘‘transliteration,’’ as defined above, in that it does not use sign language.
These regulations are not intended to restrict a deaf or hard of hearing person’s ability pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. § § 12101 et seq., to request a process, procedure, or means of communication other than an interpreter. Under the ADA and its regulations, a deaf or hard of hearing person may request a specific auxiliary aid and the public entity must give primary consideration to that choice unless another effective means of communication exists or it can demonstrate that doing so would fundamentally alter the nature of the service, program or activity or result in undue financial hardship. 28 C.F.R. § § 35.160, 35.164; 28 C.F.R. Pt. 35, App. A.
See 42 Pa.C.S. § 6302, defining ‘‘custodian’’ as ‘‘[a] person other than a parent or legal guardian, who stands in loco parentis to the child, or a person to whom legal custody of the child has been given by order of a court.’’ See also Pa.R.Civ.P. 76, which defines fiduciaries to include ‘‘an executor, administrator, guardian, committee, receiver, trustee, assignee for the benefit of creditors, and any other person, association, partnership, or corporation, acting in any similar capacity.’’ Pa.R.Civ.P. 2051 defines ‘‘incapacitated person’’ to include ‘‘an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that the person is partially or totally unable to manage financial resources or to meet the essential requirements for physical health and safety.’’
Source The provisions of this § 102 amended February 12, 2018, effective March 1, 2018, 48 Pa.B. 1092; amended November 22, 2021, effective January 1, 2022, 51 Pa.B. 7415. Immediately preceding text appears at serial pages (390519) to (390521).
§ 103. Confidentiality of Communications.
As provided in 42 Pa.C.S. § § 4415 and 4436 (relating to confidential communications in presence of court interpreter), an interpreter appointed pursuant to these regulations shall not be permitted or compelled to testify in any judicial proceeding as to any interpreted statements made by the person for whom he or she is interpreting when that person is engaged in a confidential communication as provided by any statute or general rule, including, but not limited to:
(a) 42 Pa.C.S. § 5916 (relating to confidential communications to attorney);
(b) 42 Pa.C.S. § 5928 (relating to confidential communications to attorney);
(c) 42 Pa.C.S. § 5942 (relating to confidential communications to news reporters);
(d) 42 Pa.C.S. § 5943 (relating to confidential communications to clergymen);
(e) 42 Pa.C.S. § 5944 (relating to confidential communications to psychiatrists or licensed psychologists);
(f) 42 Pa.C.S. § 5945 (relating to confidential communications to school personnel);
(g) 42 Pa.C.S. § 5945.1 (relating to confidential communications with sexual assault counselors);
(h) 42 Pa.C.S. § 5945.2 (relating to confidential communications to crime stopper or similar anticrime program);
(i) 42 Pa.C.S. § 5945.3 (relating to confidential communications to human trafficking caseworkers); and
(j) 23 Pa.C.S. § 6116 (relating to confidential communications to domestic violence counsel/advocates).
Source The provisions of this § 103 amended November 22, 2021, effective January 1, 2022, 51 Pa.B. 7415. Immediately preceding text appears at serial pages (390521) to (390522).
§ 104. Remote Interpretation.
(a) Simultaneous audiovisual technology.—In the event that a certified or otherwise qualified interpreter for persons with limited English proficiency or who are deaf or hard of hearing cannot be found to interpret in person, one may be appointed to interpret via remote technology allowing for two-way simultaneous communication of image and sound, such as video remote interpreting (VRI), video-conferencing, closed-circuit television, or web-based camera, provided that the judicial proceeding is expected to be no more than one hour in duration. Priority should be given to interpreters from AOPC’s Interpreter Certification Program (ICP) roster. Prior to utilizing the interpreter, the court must conduct a voir dire to determine his or her qualifications, unless the interpreter is a certified interpreter from AOPC’s ICP roster or has been previously used by, and his or her qualifications are known to, the court. The use of VRI should follow guidance issued by the AOPC.
(b) Telephonic interpretation.—If neither a certified nor otherwise qualified interpreter can be found to interpret in person or by remote technology allowing for two-way simultaneous communication of image and sound, one may be appointed to interpret remotely via telephone, provided the judicial proceeding is expected to be short, lasting no more than 30 minutes. Priority should be given to interpreters from AOPC’s Interpreter Certification Program (ICP) roster. If neither a certified nor otherwise qualified interpreter can be found to interpret via telephone, the court may utilize a telephone interpreter provided by a commercial telephone interpreter service. Prior to utilizing any telephonic interpreter, the court must conduct a voir dire to determine his or her qualifications, unless the interpreter has been previously used by, and his or her qualifications are known to, the court.
(c) Exceptions.—Preliminary arraignments pursuant to Rule of Criminal Procedure 540 and proceedings for emergency orders under the Protection from Abuse Act (23 Pa.C.S. § § 6101 et seq.), the Protection of Victims of Sexual Violence or Intimidation Act (42 Pa.C.S. § § 62A01 et seq.), and the Older Adults Protective Services Act (35 P.S. § § 10225.101 et seq.) may be conducted via remote technology without regard to subsections (a) and (b) above, except that a voir dire still must be conducted to determine the interpreter’s qualifications, unless the interpreter is a certified interpreter from AOPC’s ICP roster or has been previously used by, and his or her qualifications are known to, the court.
Comment Although this regulation allows for remote interpretation, interpretation in person is strongly preferred. Pursuant to subsections (a) and (b), if an interpreter cannot be found to interpret in person, the next step should be to find one to interpret via remote means that allow for two-way simultaneous communication of image and sound. It is only after determining that an interpreter cannot be found to interpret via two-way simultaneous communication of image and sound that the court should consider an audio-only device, such as a telephone.
Moreover, courts should be cautious in their use of video remote platforms (such as Zoom and Microsoft Teams) to facilitate virtual hearings. When using remote platforms, courts should follow guidance issued by the AOPC, use interpreters from AOPC’s ICP roster, do a practice run using the remote platform in advance of the hearing and, if unable to secure a rostered interpreter for the proceeding, voir dire the interpreter to ascertain his or her qualifications.
Source The provisions of this § 104 amended November 22, 2021, effective January 1, 2022, 51 Pa.B. 7415. Immediately preceding text appears at serial pages (390522) to (390523).
§ 105. Waiver of Interpreter.
(a) Waiver by a principal party in interest.—A principal party in interest with limited English proficiency or 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 principal party in interest with limited English proficiency or who is deaf or hard of hearing whether the waiver is knowing, voluntary and intelligent and that the waiver will not impede the party’s communication with the court and the fact finder. If the judicial proceeding is conducted in a court of record, the foregoing determination shall be made on the record. The principal party in interest with limited English proficiency or 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 principal party in interest with limited English proficiency or 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. If the presiding judicial officer subsequently determines that an interpreter is necessary, he or she shall proceed pursuant to § 204(b) (relating to determination of need for interpreter).
(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 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 a waiver, the presiding judicial officer should consider not only the needs of the person with limited English proficiency or 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. In the case of persons with limited English proficiency or who are deaf or hard of hearing who are witnesses, the presiding judicial officer should primarily consider the need for the finder of fact to accurately understand the witness and whether a principal party in interest wants an interpreter present to ensure the accuracy of the testimony rather than the preference of the witness. 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 who is deaf or hard of hearing, the waiver request should be denied. Waiver forms are available on the Interpreter Program page of the UJS website, http://www.pacourts.us.
Source The provisions of this § 105 amended November 22, 2021, effective January 1, 2022, 51 Pa.B. 7415. Immediately preceding text appears at serial page (390523).
§ 106. Oath for Interpreters.
Before commencement of interpreter duties, an interpreter shall take the following oath:
Do you solemnly swear or affirm that you will make an accurate, complete, and impartial interpretation from the English language into the (target language), and vice-versa, of all communication during this proceeding using your best skill, judgment, and ability and that you will abide by the Rules of Professional Conduct for Judiciary Interpreters, and so you do swear or affirm?
Once the oath is administered, the interpreter becomes an officer of the court for the duration of his or her appointment.
Comment See Pa.R.E. 604 (Interpreter qualifications and oaths).
Source The provisions of this § 106 amended November 22, 2021, effective January 1, 2022, 51 Pa.B. 7415. Immediately preceding text appears at serial page (390524).
§ 107. Cost of Providing Interpreters for Persons with Limited English Proficiency.
(a) General rule.—An interpreter appointed pursuant to § 205 (relating to appointment of interpreters) for a principal party in interest or a witness is entitled to a reasonable fee for interpreter services and shall be reimbursed for actual and reasonable expenses by the county of the court or the appellate court that has jurisdiction over the judicial proceeding in accordance with the compensation schedule approved by the Court Administrator pursuant to 42 Pa.C.S. § 4411(d). In no event shall the costs of providing interpreter services be the responsibility of the person who is limited English proficient (LEP).
(b) Assignment of costs.—In those cases where appointment of an interpreter is discretionary as specified in § 205(d) regarding appointment of interpreters for immediate family members, the presiding judicial officer may order reimbursement by the family member to the county of the court or the appellate court that has jurisdiction over the judicial proceeding for which the interpreter was appointed for its responsibilities under this chapter. In determining the amount of actual and reasonable expenses to be paid to the interpreter, the presiding judicial officer shall follow the fee schedule for interpreters established by the Court Administrator.
Comment A copy of the interpreter fee schedule for onsite, video, and telephonic interpreting can be found in Schedule G and on the Interpreter Program page of the UJS website, http://www.pacourts.us.
In a judicial district comprised of more than one county, the county of the court that has jurisdiction over the judicial proceedings is the county in which the cause of action arose.
Source The provisions of this § 107 amended February 12, 2018, effective March 1, 2018, 48 Pa.B. 1092; amended November 22, 2021, effective January 1, 2022, 51 Pa.B. 7415. Immediately preceding text appears at serial page (390524).
§ 108. Costs of Providing Interpreters for Persons who are Deaf or Hard of Hearing.
General rule.— An interpreter appointed in accordance with § 205 is entitled to a reasonable fee for his or her services and shall be reimbursed for actual and reasonable expenses by the county of the court that has jurisdiction over the judicial proceeding in accordance with the compensation schedule approved by the Court Administrator pursuant to 42 Pa.C.S. § 4431(d). Expenses related to interpreters appointed for appellate judicial proceedings shall be the responsibility of the appellate court. In no event shall the cost of providing interpreter services be the responsibility of the person who is deaf or hard of hearing.
Comment A copy of the interpreter fee schedule for onsite, video, and telephonic interpreting can be found in Schedule G and on the Interpreter Program page of the UJS website, http://www.pacourts.us.
In a judicial district composed of more than one county, the county of the court that has jurisdiction over the judicial proceedings is the county in which the cause of action arose.
Source The provisions of this § 108 amended November 22, 2021, effective January 1, 2022, 51 Pa.B. 7415. Immediately preceding text appears at serial page (349435).
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