Language Proficiency as a Matter of Law: Judicial Reasoning on Miranda Waivers by Speakers with Limited English Proficiency (LEP)

Judges wield enormous power in modern society and it is not surprising that scholars have long been interested in how judges think. The purpose of this article is to examine how US judges reason on language issues. To understand how courts decide on comprehension of constitutional rights by speakers with Limited English Proficiency (LEP), I analyzed 460 judicial opinions on appeals from LEP speakers, issued between 2000 and 2020. Two findings merit particular attention. Firstly, the analysis revealed that in 36% of the interrogations, LEP speakers were advised of their rights only in English. This means that two decades after the Executive Order 13166 (2000) Improving Access to Services for Persons with Limited English Proficiency, law enforcement still doesn't have adequate resources to advise LEP speakers of their constitutional rights in their primary languages. Secondly, the analysis revealed that some courts treat second language proficiency as an all-or-none phenomenon. This approach results in linguistic discrimination against LEP speakers who cannot comprehend legal language but are denied the services of an interpreter because they can answer basic questions in English. I end the discusson with recommendations for best practices in delivery of constitutional rights.