Ideally, people should stand equally before the courts of justice, and this is true whether they are rich or poor. The differences in financial capacity are something that bail bond companies and bail bond agents try to remedy by providing those who cannot afford to pay their bail the resources to satisfy their bail conditions anyway.
But aside from financial capacity, there are other differences that could affect how an individual is treated by courts. One of them is their capacity to speak English.
The United States has long been a melting pot of cultures, and there are many residents who cannot understand or do not know how to speak English. Or even if they do have a basic grasp of English, it is probably not enough to enable them to understand legal proceedings and legal documents such as a bail contract.
So, what happens when a defendant who cannot speak or understand English is brought before a court, and the judge makes a determination regarding bail, sets the amount of bail, and imposes bail conditions? Before the defendant can agree to the terms of the bail contract, are these terms translated to him? Is the bail bond contract also translated for his benefit before he is asked whether he agrees or disagrees to the said terms? Perhaps more importantly, are the terms of the bail contract translated for him so that he is aware of what he is agreeing to and therefore realizes the consequences of breaking any of the conditions of his bail?
There are legal provisions that seek to assist non-English speaking parties to a court hearing. Interpreters and translators are often provided, and they are tasked to convey to the individual all that is being said, on the one hand; and on the other, are also tasked with mediating between the cross-examiner and the individual should he or she be called to the witness stand. The mark of a good interpreter is his ability to convey the full flavor of the translation, despite the use of different words. Arrogance, anger, relief, sadness, depression – all these must be conveyed by the interpreter, whether from the witness to the court or from the court to the defendant. Otherwise, a session of direct and cross-examination will not be very fruitful if neither can understand what the other is saying.
Bail hearings and other pre-trial matters are usually heard as fast as possible because otherwise, courts would not be able to do anything else. Judges may take time deliberating on their decisions, but they also do need to save time whenever possible. And they do the latter by moving through pre-trial matters as quickly as possible.
A bail hearing is properly considered a part of pre-trial matters. When you are dealing with a defendant who is having difficulty understanding what is going on, his lawyer will usually ask the court for time to consult with his client. This is done so that the lawyer can discuss things more extensively with his client before any consent is given to whatever is being proposed. In this case, what the lawyer needs is an interpreter. So, the lawyer could also ask for additional time to request an available interpreter.
An interpreter must be provided to a criminal defendant whenever he or she appears in court, and it is incumbent upon the court and the interpreter to make sure that the defendant understands as clearly as possible what is going on and what is being said. But what about contracts with bail agents?
Bail bond companies and agencies are private entities and therefore are not covered by the rules on the mandatory provision of an interpreter for a non-English speaking, or an ESL (English as second language) defendant. Bail bond companies are, however, still expected to comply with basic fair play in terms of meeting of the minds when it comes to agreements. And because bail bond companies are regulated at the state level, so are the regulations in terms of translations done at the state level, too.
In certain states, this is not relevant because bail bond companies have been prohibited from operating within the state anyway. In other states, especially where there are large numbers of ESL and non-English speaking communities, regulations may be put in place to ensure protection to significant portions of the community. For bail contracts, in particular, translations are mandatory in the defendant’s primary language, and a violation of this provision can lead to a cancellation or a unilateral rescission of the contract by the aggrieved party, I.e., the defendant.
The basic premise here is that a defendant, or any individual for that matter before they can be considered as legally agreeing to a binding agreement, must understand the terms of what they agree to. To be able to give valid consent or agreement to a written bail contract, these must be presented to him in terms that he can understand. Mandating a translation of standard bail contracts into an individual’s native tongue is designed to address this very need for full and intelligent consent to a valid and binding contract.