State v. Wei

1

NOT DESIGNATED FOR PUBLICATION

No. 120,443

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

JIWU WEI,
Appellee.

MEMORANDUM OPINION


Appeal from Douglas District Court; JAMES T. GEORGE, judge pro tem. Opinion filed October 18,
2019. Affirmed.

Kate Duncan Butler, assistant district attorney, Charles Branson, district attorney, and Derek
Schmidt, attorney general, for appellant.

Jerry K. Levy, of Law Offices of Jerry K. Levy, P.A., of Lawrence, for appellee.

Before STANDRIDGE, P.J., PIERRON and ATCHESON, JJ.

PER CURIAM: After Jiwu Wei was charged with several traffic offenses in
Douglas County District Court, he asserted he spoke a rare Chinese dialect and didn't
really understand English. The district court attempted and failed to secure an interpreter
for Wei's trial. The district attorney's office augmented those efforts with an equal lack of
success. Wei's bilingual wife declined to act as an interpreter for the trial, and the district
court rejected the prosecutor's suggestion she could be compelled to serve in that
capacity. The district court dismissed the charges with prejudice nearly three years after
they first had been filed. The State has appealed the dismissal. Under the circumstances,
we find the district court did not abuse its discretion and affirm.

2

The sole issue on appeal rests on the authority of the district court to dismiss this
case because an interpreter could not be found to serve during the trial. The State
advances an array of arguments rooted in public policy and in both statutory and common
law for why the district court should be reversed and the case reinstated. We take those
up after outlining the factual circumstances, as we glean them from a skimpy record, and
the more detailed procedural progression of the prosecution.

FACTUAL AND PROCEDURAL HISTORY

The district court never held an evidentiary hearing on the underlying events
leading to the traffic charges against Wei. So we have looked at the probable cause
affidavit, recognizing that although the law enforcement officer made the statement under
oath, she has not been cross-examined and no one has had the opportunity to assess her
demeanor during such questioning. See State v. Franco, 49 Kan. App. 2d 924, 936, 319
P.3d 551 (2014) ("'The judicial process treats an appearance on the witness stand, with
the taking of an oath and the rigor of cross-examination, as perhaps the most discerning
crucible for separating honesty and accuracy from mendacity and misstatement.'"
[quoting State v. Bellinger, 47 Kan. App. 2d 776, 787, 278 P.3d 975 (2012) (Atcheson, J.,
dissenting)]). But those untested averments provide a useful factual context.

According to the affidavit, Wei was driving a dark colored sedan shortly before
noon on November 7, 2015, in rural Douglas County when the front of his car struck the
rear of another car as both were passing through an intersection. Wei stopped, spoke
briefly to the other driver, and then drove away. The other driver then called 911. She
later told an investigating officer she could not understand Wei because he had a thick
accent. An officer responding to the 911 call saw a dark sedan with damage to the hood
and grill. The officer attempted to stop the car, but the driver sped off. After what the
affidavit described as "a short pursuit," the driver pulled over. Two officers then
identified Wei as the driver and arrested him. They took Wei to the law enforcement
center where the officer who wrote the affidavit and a fourth officer questioned him.
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According to the affidavit, Wei admitted to being inattentive and failing to see a stop sign
at the intersection. Wei told the officers that he left the scene because he believed the
other vehicle had not been damaged and that he didn't initially pull over for the pursuing
law enforcement officer because he didn't want to pay a fine.

About a week later, the State charged Wei with failing to stop at a stop sign, a
traffic infraction; failing to provide required information at the scene of a motor vehicle
collision resulting in property damage, an unclassified misdemeanor; leaving the scene of
a property damage collision without providing required information, an unclassified
misdemeanor; and attempting to flee or elude a law enforcement officer, a Class B
misdemeanor. The fleeing and eluding charge is the most serious of the four and carries a
sentence of up to six months in jail and a fine of up to $1,000.

As we explain in recounting the procedural history, the initial case was dismissed
without prejudice in January 2018. The State refiled the charges four months later in a
new case. The appellate record consists of hearing transcripts and court filings in the
second case and summary docket sheets for both cases. So what we know about the initial
case has been pieced together from references to it in the record of the second case, the
docket sheets, and common ground in the appellate briefs.

From reviewing those sources, we understand Wei appeared at the court hearings
throughout both cases with legal representation. One lawyer represented him for almost a
year in the first case and withdrew in favor of Wei's current lawyer. Early in the first
case, Wei's lawyer informed the district court that Wei spoke an unusual Chinese dialect
and would require an interpreter. We gather that at some (and, perhaps, most or all) of the
hearings, Dr. Ferilyn Shi, Wei's wife, acted at least informally as an interpreter. As we
indicated, she is bilingual. The district court record indicates Shi is a neurologist who has
worked at various universities and medical centers in the United States. She also
apparently translated at private meetings between Wei and his lawyer.

4

The docket sheet indicates a trial setting shortly after Wei changed lawyers at
which an interpreter was present. The district court continued the case because the
interpreter spoke a different Chinese dialect than Wei does. There were several more
continuances granted in the first case ostensibly to find a suitable interpreter. The district
court dismissed the case without prejudice in early January 2018. We have very little
information on what specifically the district court did to secure an interpreter during the
first case or what the district attorney's office may have done to supplement those efforts.

After the charges were refiled, the district court held several hearings and
scheduled a trial for mid-July. At that trial setting, the district court made a short record
indicating his administrative assistant had tried to find an appropriate interpreter and
could not. The district court said the staff had "searched diligently" but did not detail
what had been done. The prosecutor pointed out that the district attorney's office had
unsuccessfully tapped various resources, including professors at the University of
Kansas, to find an interpreter. The prosecutor floated the idea that Dr. Shi could translate
at trial. Both Wei's lawyer and the district court suggested she could not be compelled to
do so. The district court continued the case for about six weeks.

In the meantime, Wei filed a motion to dismiss based on the failure to find an
interpreter and on the overall delay in moving forward to trial. The district court heard
arguments on the motion in early September. During the hearing the district court asked
Dr. Shi if she were willing to act as an interpreter at a trial. She unequivocally stated she
was not.

At the hearing, the prosecutor said Wei had provided two differing descriptions of
the dialect he speaks, hampering efforts to find an interpreter. The prosecutor labeled that
a deliberate "delay tactic." The district court had Dr. Shi again provide information on the
dialect, keyed to the specific geographical area where Wei was raised in southwest China
near Vietnam.

5

The district court then summarized the efforts of its staff to find an interpreter,
including speaking with faculty at the University of Kansas and contacting various
professional language translation services and the Chinese embassy. The district court
indicated that those services didn't request additional information about the dialect and
simply indicated it was rare. The district court acknowledged it had the duty to secure an
interpreter and stated, "We've pretty much exhausted what we're going to do." The
district court indicated the district attorney's office could continue looking for an
interpreter. To that end, the district court continued the case to November 9 for trial with
the understanding that if an interpreter were not available the case would be dismissed.

The transcript of the proceedings on November 9 indicates that a representative of
a private translation service was on a speakerphone with the district court, the lawyers,
and Wei. The discussion suggests the district attorney's office had found the particular
service. As the hearing unfolded, the company representative stated that the interpreter
who had been identified as likely skilled in Wei's dialect was unavailable at that time.
The prosecutor then told the district court that the company representative was unable to
say when the interpreter would be available. The call was terminated. The district court
dismissed the case with prejudice, consistent with the discussion at the previous hearing.

The State has appealed the dismissal of the case, as permitted in K.S.A. 2018
Supp. 22-3602(b)(1).

LEGAL ANALYSIS
1. Applicable Legal Principles

A district court has the authority to dismiss a criminal case with prejudice, thereby
precluding the State from refiling the charges against the defendant. An appellate court
will review the dismissal under an abuse of discretion standard. State v. Bolen, 270 Kan.
337, Syl. ¶¶ 1-2, 13 P.3d 1270 (2000). A district court exceeds that discretion if it rules in
a way no reasonable judicial officer would under the circumstances, if it ignores
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controlling facts or relies on unproven factual representations, or if it acts outside the
legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field
Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013); State v. Ward, 292 Kan. 541,
Syl. ¶ 3, 256 P.3d 801 (2011). A district court's discretion to dismiss a criminal case with
prejudice is not unfettered, since the governing legal considerations effectively restrict
that authority to "extreme circumstances." Bolen, 270 Kan. at 343. And its exercise—as a
drastic remedy—should be confined to those situations where "the interests of justice
require such action." 270 Kan. at 343.

A defendant's right to have an interpreter at critical stages of a criminal
prosecution is grounded in both constitutional law and, in Kansas, in statutory authority.
K.S.A. 75-4351 (statutory duty of court to appoint interpreter); State v. Calderon, 270
Kan. 241, 246-47, 13 P.3d 871 (2000); Ramirez v. Young, 906 F.3d 530, 536 (7th Cir.
2018) (due process right); United States v. Henry, 888 F.3d 589, 602 (2d Cir. 2018)
(Sixth Amendment right). Criminal defendants have constitutional rights found in the
Sixth Amendment to the United States Constitution to be present at trial, to confront the
witnesses against them, and to the assistance of a lawyer. Those rights entail more than a
physical presence; defendants must be able to consult meaningfully with their lawyers
and otherwise participate in their cases. That's why a criminal defendant who because of
mental illness cannot understand what's going on is considered incompetent to stand trial.
See Medina v. California, 505 U.S. 437, 444, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992);
Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975) (mental
competency for due process purposes entails "the capacity to understand the nature and
object of the proceedings," to consult with a lawyer, and to assist in presenting a
defense). A criminal defendant is no less shackled by an impenetrable language barrier
and is no more able to assist in his or her defense if he or she cannot speak the language
of the court and counsel. See Calderon, 270 Kan. at 253. A criminal defendant who is not
conversant in English and has to proceed without an interpreter also loses the due process
protections of the Fourteenth Amendment to the United States Constitution. See Mendoza
v. United States, 755 F.3d 821, 827-28 (7th Cir. 2014).
7


Under K.S.A. 75-4351(b), district courts "shall . . . appoint[]" interpreters for
defendants in criminal prosecutions that could "result in [their] confinement . . . or the
imposition of a penal sanction" if their "primary language is one other than English." On
its face, the statutory requirement is broader than the constitutional right. See Mendoza,
755 F.3d at 828 ("[A] criminal defendant lacking a basic understanding of the English
language has a due process right to an interpreter."); United States v. Perez, 918 F.2d
488, 490 (5th Cir. 1990) (no constitutional error in conducting plea hearing without
interpreter where defendant had "[a]n adequate understanding of the English language"
and made no request for interpreter). Both in the district court and on appeal the parties
have focused on the statutory requirement, so we follow that lead. But we also weigh the
complementary constitutional interests in a fair adjudicatory process for criminal
defendants.

2. Case Specific Issues

We lay out the guiding legal principles that lead us to affirm the district court's
decision to dismiss the charges against Wei with prejudice. In doing so, we flag and
reject some of the State's arguments for reversing that ruling. We then consider and reject
the remaining arguments. As a net result of that exercise, we find no abuse of judicial
discretion under the circumstances of this case.

2a. District Court's Duty to Secure Interpreter

First, under K.S.A. 75-4351, the district court has the duty to appoint an interpreter
and, thus, implicitly bears the obligation to find an appropriate interpreter. K.S.A. 75-
4352 (judge shall appoint interpreter); cf. K.S.A. 75-4355 (statutes regulating
appointment of interpreters do not limit "the inherent power of a court to appoint an
interpreter"); State v. Pham, 234 Kan. 649, 662, 675 P.2d 848 (1984) (district court did
not err in appointing more than one interpreter for trial with multiple defendants). As we
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have said, the district court acknowledged that obligation. The duty demands a reasonable
effort under the circumstances. Again, the district court acknowledged as much when it
weighed the comparatively minor charges against the defendant with the time that had
been expended in trying to find a suitable interpreter.

The State argues that the district court impermissibly outsourced its duty to the
district attorney's office in what amounted to an abuse of discretion. We disagree with the
factual premise of the argument. The district court outlined on the record the efforts its
staff undertook to find an interpreter fluent in Wei's dialect. Those efforts included
contacting private companies providing translation services, potentially knowledgeable
faculty at the University of Kansas, and in an admitted longshot the Chinese Embassy.
Although the district court did not provide an elaborate description of those undertakings,
the prosecutor sought no more detail.

We recognize the district attorney's office augmented the district court's search for
an interpreter. And the district court rather pointedly left it to the prosecutor to find an
interpreter after the September 2018 hearing. But this is not a case in which the district
court did nothing, abdicating its statutory responsibility.

Given the record, we cannot say the district court failed to make reasonable efforts
to secure an interpreter for the trial. The State has not shown otherwise. See State v.
Warren, 302 Kan. 601, 616, 356 P.3d 396 (2015) (appellant has obligation to furnish
record affirmatively showing error). Perhaps the district court could have done more or
might been more creative in its search. But a district court is not required to engage in an
unlimited expenditure of time and effort to line up an interpreter. By the same token, the
time and effort reasonably required in a case involving serious felonies would be
commensurately greater than the traffic offenses brought against Wei. The district court
noted as much.

9

We have no need to fashion a set of criteria or a bright-line test for reasonableness
applicable across cases. Nor do we necessarily think that would be the best approach for
addressing this issue on a recurrent basis. The record here demonstrates sufficient effort
by the district court that we find no abuse of discretion for that reason in its decision to
dismiss the case with prejudice. The additional expenditure of time and resources by the
district attorney's office is laudable. But that work does not diminish the sufficiency of
the district court's effort in the first instance. And it tends to highlight the particular
difficulty in securing an interpreter in this case. Accordingly, the district court's decision
to dismiss comports with the considerations laid out in Bolen, particularly given the
nature of the charges and the length of the delay.

2b. Whether Wei Required an Interpreter

When a defendant requests an interpreter, the district court may inquire to
determine that the person's primary language is other than English—the standard for
appointing an interpreter under K.S.A. 75-4351. If the district court makes that finding,
the statute mandates appointment of an interpreter. An explicit finding from the district
court to that effect here is not readily apparent from the appellate record. But everyone
proceeded on the undisputed assumption that Wei's primary language was not English.
The prosecutor did not challenge the factual foundation for Wei's request in the district
court.

For the first time on appeal, the State suggests the district court abused its
discretion by requiring that Wei have an interpreter for the trial. The State argues: (1)
The record offers some indication Wei understands English; (2) the case was not
complex; and (3) "the public's interest" favors "the administration of justice." So the State
submits the confluence of those considerations would have allowed the district court to
dispense with an interpreter.

10

The argument is flawed in several respects. Even assuming we should consider the
point, the test the State proposes conflicts with the statutory directive in K.S.A. 75-4351
and substitutes a sliding scale based on how well a defendant understands English and the
seriousness of the charges with an amorphous overlay of public interest. The statute
doesn't bend that way—the district court's statutory duty is triggered if English is the
defendant's secondary, i.e., nonprimary, language and the charges could result in any jail
time, i.e., confinement, or any fine, i.e., a penal sanction, however minimal. Moreover,
the test doesn't accommodate the basic constitutional requirement that defendants be
sufficiently conversant in English—either through their own linguistic abilities or with
the help of an interpreter—to participate meaningfully in the adjudicatory process. What
the State has proposed isn't the law.

In addition, the prosecutor didn't challenge the district court's assessment that Wei
qualified for an interpreter under K.S.A. 75-4351(b) or as a matter of constitutional right
and never developed a record that would call that assessment into question or support the
test fashioned in the appellate brief. The State points to the probable cause affidavit
showing that Wei attempted to communicate with the other driver and gave a statement to
investigating officers at the law enforcement center. But what's described in the affidavit
establishes nothing with evidentiary heft, especially at this juncture. Even so, the affidavit
actually indicates Wei could not readily make himself understood in English at the scene
of the collision despite trying to do so. That would be a factor in the constitutional
calculation favoring appointment of an interpreter for a criminal defendant. The affidavit
is silent as to how the officers communicated with Wei when they questioned him. The
silence is inscrutable and simply invites speculation. The prosecutor could have had
either or both of the officers testify in the district court if she wished to dispute Wei's
request for an interpreter.

We mention that the statute's reliance on a defendant's "primary language" injects
a couple of issues we need not address in this case. First, the statutory scheme does not
define primary language. It could mean the language a person speaks most of the time or
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the language he or she would prefer to speak. It might be a person's native or birth
language, although we expect that's less likely the intended statutory rule—someone
emigrating at a young age might no longer speak that language primarily or at all as an
adult. The record sufficiently shows that Wei's primary language was not English,
entitling him to an interpreter under K.S.A. 75-4351(b). We suppose a criminal defendant
could make a knowing and intelligent waiver of any statutory or constitutional
entitlement to an interpreter for court proceedings. Many people are fluent in English,
although it may not be their primary language. For example, that's undoubtedly true of a
number of court approved interpreters. A speaker of fluent English as a second language
might not want an interpreter and probably could not be forced to use one. We have
neither situation here, since Wei clearly requested an interpreter and his primary
language, however that may be defined, was not English.

2c. District Court's Decision Not to Force Dr. Shi to Translate at Trial

The State contends the district court had the authority to compel Dr. Shi to serve
as an interpreter during Wei's trial despite her express declination. The State identifies
two alternative sources for that purported judicial power—K.S.A. 75-4353(a), which
circumscribes when a spouse or blood relative of a party may serve as an interpreter, and
the district court's inherent authority. We find neither assertion tenable and turn first to
K.S.A. 75-4353(a).

The statute provides:

"No one shall be appointed to serve as an interpreter for a person pursuant to the
provisions of K.S.A. 75-4351. . . if such interpreter is married to that person, related to
that person within the first or second degrees of consanguinity, living with that person or
is otherwise interested in the outcome of the proceeding, unless the appointing authority
determines that no other qualified interpreter is available to serve."

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The statute states a negative rule prohibiting district courts from appointing defined
categories of individuals as interpreters. The first three categories disqualify individuals
with familial type associations with the person who requires an interpreter: Spouses;
close blood relatives; and residents of a common dwelling. The fourth category
disqualifies anyone "otherwise interested in the outcome" of the matter. The rather
obvious legislative intent is to prohibit persons from serving as interpreters in specific
cases when they have an apparent bias or prejudice because of what's at stake or based on
a relationship to a party or witness requiring translation of the proceedings. The
prohibition has been drafted using "shall" that we take to be mandatory, consistent with
the common usage of the word in statutes. See Gannon v. State, 298 Kan. 1107, 1141,
319 P.3d 1196 (2014). In this case, Dr. Shi fits within the disqualification for spouses.

But the statute contains a limited exception to the mandatory prohibition. In the
absence of any other interpreter, the categorical disqualification recedes. And the district
court then has the authority to appoint an otherwise prohibited person as an interpreter. In
other words, the district court may choose to do so. Contrary to the State's argument,
however, the exception does not create a statutory about-face requiring the district court
to use an otherwise disqualified person as an interpreter. A district court still may have
substantial reasons for not doing so in a particular case—most commonly, perhaps, a
well-grounded concern that the putative interpreter will not carry out those duties in
anything approaching an evenhanded manner. A renegade interpreter with extended
responsibilities in a particular proceeding would undermine both the perceived and actual
fairness of the truth-seeking process. The better course almost certainly would point
toward additional efforts to secure another interpreter.

In addition, the exception in K.S.A. 75-4353(a) presupposes a willing candidate to
interpret. Nothing in that subsection or the overall statutory scheme for interpreters
suggests the district court can conscript an otherwise unwilling interpreter to serve
involuntarily. The State cites no authority for that spin on the language. To the contrary,
that construction would read into the statute something not readily or even inferentially
13

found in the actual wording. It would be a dramatic expansion of the statute rather than
an arguably minor recasting of the language fully in keeping with what the Legislature
had already provided. As such, the State's suggestion shreds accepted canons of
construction. State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016) (first principle of
statutory construction requires discerning legislative intent from plain meaning of words
used if at all possible); Robinson v. City of Wichita Employees' Retirement Bd. of
Trustees, 291 Kan. 266, Syl. ¶ 6, 241 P.3d 15 (2010) (The court "will not speculate on
legislative intent and will not read the [statutory] provision to add something not readily
found in it."); Unruh v. Purina Mills, 289 Kan. 1185, 1201, 221 P.3d 1130 (2009)
(rejecting an argument that "asks the court to read into the statute language that is not
present").

In passing, we mention that before appointing a person to translate, a district court
has to determine that the individual meets certain criteria measuring competency set out
in K.S.A. 75-4353(c). On appeal, the State argues Dr. Shi almost certainly would satisfy
those standards. Perhaps. But the district court never considered or ruled on Dr. Shi's
linguistic skills measured against the statutory requirements. We view that question as an
open one that we need not and really cannot decide on this record.

Apart from possible concerns about Dr. Shi's objectivity, a district court order
compelling her to serve as an interpreter to facilitate the trial of Wei would intrude into
their marital relationship in a fractious way the law tends to avoid. Generally speaking,
the law looks to preserve marital harmony. That's one of the primary policy arguments
for the testimonial privilege afforded spouses. See K.S.A. 60-428 (scope); 98 C.J.S.,
Witnesses § 302 (purpose).

As the State pointed out in the district court, the marital privilege would not
prevent Dr. Shi from serving as an interpreter, since those duties have nothing to do with
the disclosure of any confidential communications with Wei. And one spouse can be
compelled to testify about the conduct or nonprivileged statements of the other spouse.
14

See State v. Newman, 235 Kan. 29, 37-38, 680 P.2d 257 (1984). But pressing Dr. Shi into
service as an appointed agent of the court in the prosecution of her husband over her
objection would be materially different from her reluctantly testifying as a fact witness
under subpoena. In this case, fostering marital harmony weighs against the State's
position.

As a backstop, the State asserts a district court has the inherent authority to
appoint an interpreter. We presume so, consistent with K.S.A. 75-4355. But, as with the
statutory argument, that foundation doesn't support what the State tries to build upon it
here. District courts have broad authority in managing trials and other proceedings, and
their exercise of that authority typically entails judicial discretion. Harsch v. Miller, 288
Kan. 280, 288, 200 P.3d 467 (2009) (general authority); State v. Hamilton, 240 Kan. 539,
547, 731 P.2d 863 (1987) (trial proceedings). Inherent authority is not, however, a
boundless source of judicial power. We doubt that authority extends to demanding
otherwise qualified interpreters to appear at trials and forcing them to work against their
wishes even if they are fairly compensated.

We haven't endeavored to track down caselaw for our particularized conclusion
about dragooned interpreters, since the State has not cited any for its contrary (and we
think unlikely) proposition. Nor has the State supported the proposition with a reasoned
argument extending beyond the mere invocation of inherent authority and cases
recognizing that general authority. Those shortcomings undermine the State's pitch. See
State v. Pewenofkit, 307 Kan. 730, Syl. ¶ 2, 415 P.3d 398 (2018) (appellate court need not
consider point unsupported by authority or a reasoned argument for its validity despite
absence of supporting authority). Although we do not treat the State's point as waived or
abandoned, we are wholly unpersuaded.

Moreover, even if district courts were to possess such authority, they would not be
obligated to exercise it in any given case. So the district court's call against using Dr. Shi
as an interpreter remains a discretionary one. There has been no abuse of discretion,
15

given the traffic offenses at issue here and potential problems with Dr. Shi involuntarily
serving as the interpreter at trial.

2d. State's Public Policy Argument for Reversal

On appeal, the State reprises its argument to the district court that dismissing this
case with prejudice will encourage criminal defendants to evade prosecution by claiming
to speak obscure foreign dialects as their primary language in the expectation no
interpreter will be found. In its brief, the State quotes the prosecutor's dire prediction
voiced during the district court hearing on Wei's motion to dismiss: "'[I]t would set a
terrible precedent if defendants were allowed to come in and say they speak a very rare
dialect. . . . [A]llowing a defendant to come in and use language as a defense gives them
prosecutorial immunity.'" This plays more like an oratorical Roman candle than studied
argument.

The purported danger apparently lies principally in the requirement of K.S.A. 75-
4351 that a district court must appoint an interpreter for a defendant whose primary
language is other than English for trial and various other proceedings. But the State's
argument likely imputes to defendants a remedy they don't have in K.S.A. 75-4351 and,
thus, overstates both the universe of defendants who could successfully make a "rare
dialect" claim and the risk of thwarted prosecutions.

As we have said, the statute imposes a duty on the district court to secure an
interpreter for trial even if the defendant is conversant in English. K.S.A. 75-4351(b). The
statute similarly requires an interpreter to be present for postarrest police interrogations of
suspects whose primary language is not English. K.S.A. 75-4351(e). The Kansas
Supreme Court has held that although the failure to have an interpreter at the
interrogation of an arrestee violates K.S.A. 75-4351(e), it does not create an enforceable
remedy in that person to suppress as evidence any statement he or she may have given.
State v. Zuniga, 237 Kan. 788, 791-92, 703 P.2d 805 (1985). The court held the
16

constitutional test for voluntariness that takes into account the suspect's fluency in
English as one factor governs suppression. 237 Kan. at 792. In reaching that conclusion,
the court held that K.S.A. 75-4351 and the related statutes on interpreters "do not contain
any sanctions for violations." 237 Kan. at 791. This court more recently applied Zuniga in
affirming the denial of a motion to suppress premised on the absence of an interpreter at a
police interrogation in violation of K.S.A. 75-4351(e). State v. Garcia-Barron, 50 Kan.
App. 2d 500, 506-07, 329 P.3d 1247 (2014).

Based on Zuniga, a defendant probably could not successfully reverse a guilty
verdict on the grounds he or she had not been appointed an interpreter at trial under
K.S.A. 75-4351(b) simply because his or her primary language was not English. Rather,
the defendant would have to satisfy the considerably more demanding standard for a
constitutional deprivation by showing an inability to communicate meaningfully in
English. So a criminal defendant conversant in English could not successfully evade
prosecution by claiming some obscure dialect as a primary language.

As we have indicated, the State would be entitled to a district court hearing to
challenge a defendant's assertion that he or she wasn't conversant in English and spoke
only some unusual dialect. The former might be easier to prove than the latter through
testimony from acquaintances, coworkers, and others regularly communicating easily
with the defendant in English. We, of course, have not endeavored to suggest just how
conversant in English a person must be to satisfy the Sixth Amendment and due process
protections afforded criminal defendants.

None of that changes the outcome here, since the record supports the district
court's conclusion that Wei could adequately communicate only in the Chinese dialect he
identified. So he required an interpreter for trial. But the broader picture, taking into
account Zuniga, considerably weakens the State's floodgate argument. Moreover, the
Kansas Legislature passed the statutes governing appointment of interpreters about 45
years ago. Not only have we yet to the see the predicted flood, there apparently hasn't
17

been so much as a trickle of criminal defendants making specious claims for interpreters.
And courts don't necessarily warm up to speculative floodgate arguments anyway. See,
e.g., Lafler v. Cooper, 566 U.S. 156, 172, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012);
Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010);
Brigham v. Dillon Companies, Inc., 262 Kan. 12, 18-19, 935 P.2d 1054 (1997).

As an ancillary point, the State suggests that Wei had been something less than
forthcoming in identifying the Chinese dialect he speaks as a ploy to confound the search
for an interpreter. The State says Wei (or perhaps Dr. Shi on his behalf) identified the
language in at least two different ways. But the district court made no finding that Wei
had engaged in a subterfuge and, to the contrary, indicated its staff had reported no
problems because of how the dialect had been described.

Defendants requesting interpreters have an obligation to fairly identify the
language in which they are fluent and to cooperate in providing related information to
facilitate the district court's efforts to secure an appropriate interpreter. In unusual
circumstances, that might even include providing a voice exemplar or a writing sample to
aid in clearing up confusion about a rare dialect. The voice and writing samples are not
considered privileged when a prosecutor seeks them from a defendant in an ongoing case,
so they wouldn't be as aids to a district court in satisfying the defendant's request for an
interpreter. See United States v. Craig, 808 F.3d 1249, 1260-61 (10th Cir. 2015) (voice
exemplar); United States v. Greer, 631 F.3d 608, 612-13 (2d Cir. 2011) (handwriting
sample).

3. Conclusion

The district court's decision to dismiss the traffic charges against Wei rests on the
circumscribed judicial discretion outlined in Bolen, recognizing the particular costs to the
public in terminating criminal prosecutions without affording the State the chance to
present its evidence to a fact-finder. The district court recognized the legal framework for
18

its decision and understood the factual circumstances—principally the continuing
inability to find a suitable interpreter for Wei despite both its reasonable efforts and the
prosecutor's supplemental efforts. We are not prepared to say the dismissal was so wide
of the mark that no other district court would have ruled the same way. Even if the ruling
were open to fair debate (and it might be), that is not the measure for reversing an
exercise of judicial discretion.

The State's contrary arguments cannot override the stringent standard we apply in
reviewing matters of judicial discretion. As we have explained, some of the arguments
are factually unsupported in the record, others depend on erroneous legal interpretations,
and the policy considerations are simply unpersuasive.

Finally, our decision is intimately tied to the circumstances of this particular and
most unusual case.

Affirmed.