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3 - Linguistic Inequality in the Legal System

Published online by Cambridge University Press:  05 August 2016

Douglas A. Kibbee
Affiliation:
University of Illinois, Urbana-Champaign
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Summary

The justice system requires both fairness and impartiality, a matter of perception as well as reality. The right to a fair trial or hearing applies to all, regardless of their citizenship, their social status, or their knowledge of the English language. The potential of the government to abuse its power was of great concern for the framers of the Constitution. The Bill of Rights was designed to constrain the power of government through equity and due process, which, for those who speak English as a second language – or not at all – requires special services that are negotiated at every stage of the legal process.

The Fifth Amendment to the Constitution provides a number of protections against self-incrimination and for due process: “No person shall … be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.”

The Fifth Amendment applies to the federal courts; Section 1 of the Fourteenth Amendment explicitly extends the due process protections to the states and further guarantees equal protection of the laws: “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The procedures that constitute due process are further elaborated in the Sixth Amendment, which adds the right to assistance by counsel, to confrontation of witnesses, and to an impartial jury:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The nature of due process is fairly well defined in criminal cases, less so in others such as immigration hearings, welfare eligibility cases, and civil suits.

Type
Chapter
Information
Language and the Law
Linguistic Inequality in America
, pp. 53 - 82
Publisher: Cambridge University Press
Print publication year: 2016

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