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Lost in Translation: Colorado’s Supreme Court Overlooking the Requirement of a Knowing and Intelligent Miranda Rights Waiver [People v. Nguyen, 406 P.3d 836 (Colo. 2017)]

Benjamin B. Donovan | November 15, 2018 | PDF Version (212 KB)

Summary: In a 4-3 opinion, the Colorado Supreme Court reversed the district court’s suppression order, holding the interpreter adequately conveyed the defendant’s Miranda rights to him. In so ruling, the majority failed to examine the totality of the circumstances to determine if the defendant adequately understood his rights before concluding the defendant’s waiver was knowing and intelligent.

Preferred Citation: Benjamin B. Donovan, Lost in Translation: Colorado’s Supreme Court Overlooking the Requirement of a Knowing and Intelligent Miranda Rights Waiver, 58 Washburn L.J. Online 34 (2018), http://washburnlaw.edu/wljonline/donovan-mirandarights

I. Introduction

The Fifth Amendment of the United States Constitution provides that an individual may not be compelled to incriminate himself.[1] In Miranda v. Arizona,[2] the United States Supreme Court established prophylactic rules to protect suspects’ Constitutional rights, which apply to statements obtained from suspects in custodial interrogations.[3] In People v. Nguyen,[4] a majority of the Colorado Supreme Court held the defendant knowingly and intelligently waived his Miranda rights after they were translated to him.[5] The majority’s analysis examined whether the defendant’s Miranda rights were conveyed to him, but failed to examine whether the defendant had the requisite level of comprehension to waive his Miranda rights.[6]

II. Background

A. Case Description

On June 10, 2016, Denver police officers responded to a call reporting an alleged stabbing.[7] A witness to the stabbing told the officers a man named “Hung” stabbed the victim.[8] The witness directed the police officers to a residence and identified Hung Van Nguyen as the attacker.[9] Officers detained Nguyen and transported him to the police station.[10]

At the police station, the interviewing officer, Detective Vacca, called for a Vietnamese-speaking police chaplain, Father Dang, to serve as an interpreter because Nguyen only spoke Vietnamese.[11] Father Dang was not a certified Vietnamese interpreter.[12] Detective Vacca read Nguyen’s Miranda rights to Father Dang, who translated them to Nguyen, who responded back to Father Dang, who translated the response to Detective Vacca.[13] The exchange went as follows:

DETECTIVE VACCA: [S]o you have the right to remain silent.

FATHER DANG: Uh...you have the right to be silent...silent, alright?

DETECTIVE VACCA: You understand that?

FATHER DANG: Understand?

HUNG NGUYEN: Yes.

...

DETECTIVE VACCA: Anything you say can be used as evidence against you in court. You understand that?

FATHER DANG: All you say will and may be used as evidence in court, understand?

...

HUNG NGUYEN: Yeah.

...

DETECTIVE VACCA: [You have] [t]he right to talk to a lawyer before questioning and have him present during questioning, you understand that?

FATHER DANG: Obviously you have right to talk to a lawyer who represents you before you answer the questions or to let that person represents [sic] you before the questions...during questions, understand?

HUNG NGUYEN: Yes.

FATHER DANG: Yes.

DETECTIVE VACCA: If you cannot afford a lawyer one will be appointed for you without cost before questioning. You understand that?

FATHER DANG: And if you do not have money to hire an attorney the court will instruct you, will appoint a person to you at no cost to represent you before asking questions, understand?

HUNG NGUYEN: Yes.

...

DETECTIVE VACCA: Ok, so the second part of the advisement is knowing my right and knowing now what I am doing, I wish to voluntarily talk to me, if you want to talk to me, you need to sign here.

FATHER DANG: Yeah, and as I said earlier if you want to talk directly, to cooperate with the police then sign here or if you do not want to talk to the police, you want to hire an attorney to talk.

DETECTIVE VACCA: If you...

HUNG NGUYEN: To talk about what happen[ed] last night, right?

FATHER DANG: So you want me to tell you what had happened tonight, right?

DETECTIVE VACCA: If he want[s] to.

FATHER DANG: If you want. If you do not want then let the attorney to [sic] represent you.

HUNG NGUYEN: To see a lawyer or to stay here now is the same.

FATHER DANG: Ok, doesn’t matter if I see an attorney or either I just rather talk to you.

DETECTIVE VACCA: Ok, so I just want to be clear, you understand your Miranda rights and you don’t have to talk to me, you can talk to a lawyer instead.

FATHER DANG: Because we want you to understand that you have the right to hire an attorney to represent you and you do not need to answer us right now, understand?

HUNG NGUYEN: Understand.

FATHER DANG: I don’t understand.

DETECTIVE VACCA: So you’re perfectly...you’re perfectly clear on that?

FATHER DANG: Now you understand you have the right to talk to us or do you want to let an attorney to represent you, correct?

HUNG NGUYEN: Yeah.

FATHER DANG: Yeah.

DETECTIVE VACCA: Ok, and you still want to talk to me?

FATHER DANG: Now do you want to cooperate and talk to us or do you want to let an attorney...

HUNG NGUYEN: But he wants to ask about last night and I have to tell him what happened.

FATHER DANG: If you want to ask what happened tonight I will tell you.

DETECTIVE VACCA: Ok, then he has to sign here.[14]

After the exchange, Nguyen signed the Miranda waiver form and spoke with Detective Vacca about the stabbing.[15] He was charged with first degree assault.[16]

Nguyen filed a motion to suppress his statements to Detective Vacca.[17] He argued the Miranda advisement was defective because Father Dang “repeatedly omitted and mistranslated crucial words.”[18] The State argued that, although the interpretation was not “word for word,” the concepts conveyed included the Miranda warnings.[19] The trial court found the interpretation “could be considered confusing. And when there is confusion or when there is hesitation or misunderstanding, the Court cannot find that [a Miranda waiver] is necessarily knowing or intelligent.”[20] Because there was not a knowing and intelligent waiver, the trial court granted the motion to suppress.[21] The State filed an interlocutory appeal to the Colorado Supreme Court.[22]

B. Legal Background

As a result of the Miranda decision, law enforcement officers must advise a person in custody of his rights before questioning.[23] The four Miranda rights are: (1) the suspect has the right to remain silent; (2) any statement the suspect makes may be used as evidence against him; (3) the suspect has the right to consult with an attorney and have an attorney present prior to and during any interrogation; and (4) if the suspect cannot afford an attorney, one will be appointed.[24]

Two requirements must be met for a suspect’s statement during a custodial interrogation to be admissible in court. First, the suspect must have been properly advised of his or her Miranda rights before making the statement.[25] The advisement does not need to be given in the exact order or have the exact words as in the Miranda decision.[26] Instead, the question is whether the warnings reasonably conveyed to the suspect “his rights as required by Miranda.”[27]

Second, the suspect must have voluntarily, knowingly, and intelligently waived his Miranda rights before making the statement.[28] For a waiver to be knowing and intelligent, the suspect must have a “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.”[29] A court may properly conclude a suspect’s Miranda rights have been waived only if the “totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension.”[30]

When an interpreter translates Miranda rights to a defendant, the advisement and waiver requirements collapse together.[31] In People v. Mejia-Mendoza,[32] an interpreter told the suspect misleading and confusing statements while reciting the suspect’s Miranda advisement in addition to volunteering statements to the interviewing detective on the suspect’s behalf.[33] The court held the suspect was not properly advised of his Miranda rights; therefore he did not knowingly and intelligently waive them.[34] In People v. Aguilar-Ramos,[35] a detective with “one or two years of Spanish language instruction during high school” provided the Miranda advisement and interviewed the suspect in Spanish.[36] Because Detective Vacca failed to properly advise the suspect of his Miranda rights and had difficulties communicating with the suspect, the court held the suspect “did not even minimally understand the rights as read to him.”[37]

III. Court’s Decision

In a 4-3 decision, the Colorado Supreme Court reversed the trial court’s order and remanded the case for further proceedings.[38] The majority framed the question as “whether the translation ‘reasonably convey[ed]’ to Nguyen his rights under Miranda.”[39] The court examined the legal question de novo and rejected both of Nguyen’s arguments regarding the deficiencies of Father Dang’s interpretation.[40]

First, Nguyen argued Father Dang did not inform him “of the fact that his statement could be used against him in a court of law.”[41] During the Miranda advisement, on two separate occasions, Father Dang failed to include “against you” when telling Nguyen that everything he said “will and may be used as evidence in court.”[42] Nguyen argued the omission was misleading because self-serving statements of the defendant are usually omitted at trial.[43] The majority characterized the problem of omitting the words “against you” as a problem of “overinclusion”—the statements could be used both for and against Nguyen.[44] The majority believed “a defendant in Nguyen’s position would reasonably understand that if he gave statements that implicated him in the stabbing, those statements would be used in court against him, not for him.”[45] Furthermore, the majority distinguished Mejia-Mendoza because the translation here accurately informed Nguyen that his statements would have consequences in court.[46] Therefore, the majority held the concept was “properly conveyed to, and thus understood by, Nguyen.”[47]

Second, Nguyen argued the translation did not inform him that “if he could not afford an attorney one would be appointed for him prior to questioning” at no cost.[48] The majority examined each phrase or word of the translation that could have been read to convey a concept lacking the requirements of the third and fourth Miranda warnings.[49] Each time, the majority held the extra word or phrase did not muddle the conveyance.[50] Ultimately, the majority held Father Dang’s translation to Nguyen adequately conveyed his Miranda rights, and thus reversed the trial court’s suppression order.[51]

The dissent looked at the totality of the circumstances and held Father Dang did not accurately convey to Nguyen the substance of his Miranda rights and, therefore, Nguyen did not validly waive his rights.[52] The dissent disagreed with the majority’s analysis as a whole because the majority looked at “each mistranslation in isolation and ignore[d] the confusing nature of the advisement as a whole.”[53]

IV. Commentary

In finding that Nguyen was advised of his second Miranda warning, the majority reasoned that “a defendant in Nguyen’s position would reasonably understand” that statements he made would be used against him, not for him, in court.[54] The majority failed to cite anything in the record on which to base this assumption.[55] Moreover, the majority’s analysis was flawed when it determined Nguyen was advised that his statements could be used against him because it examined what “[a] defendant in Nguyen’s position would reasonably understand.”[56] Instead of using an objective standard, the court should have used a subjective standard to determine what Nguyen actually understood about the American legal system and its adversarial nature.[57]

The majority’s analysis failed to examine the advisement as a whole to determine whether Nguyen understood his Miranda rights so he could knowingly and intelligently waive them.[58] The court framed the issue as “whether the translation ‘reasonably convey[ed]’ to Nguyen his Miranda rights.”[59] To resolve the issue, the majority focused on Father Dang’s translation of Detective Vacca’s statements; because the Miranda warnings were conveyed to Nguyen, the court held he understood them.[60] Typically, when an interpreter translates Miranda rights to a suspect, the courts analyze whether the warnings were conveyed and whether the suspect had the requisite level of comprehension to waive his rights.[61] Therefore, the majority should have examined the totality of the circumstances regarding the custodial interrogation to determine if Nguyen knowingly and intelligently waived his Miranda rights. The court should have examined what Nguyen said throughout the interview that shed light on whether he understood the substance of his Miranda rights.[62]

The majority fails to reference two key exchanges that cast doubt on whether Nguyen sufficiently understood his Miranda rights.[63] The first occurred when Father Dang told Nguyen “if [he did] not want [to talk about last night] then let the attorney to [sic] represent you.”[64] Nguyen responded, “[t]o see a lawyer or to stay here now is the same.”[65] Nguyen’s response demonstrates that he did not understand he could have an attorney present.[66] The second occurred when Father Dang asked “[n]ow do you want to cooperate and talk to us or do you want to let an attorney.”[67] Nguyen responded, “[b]ut he wants to ask about last night and I have to tell him what happened.”[68] This response demonstrates that Nguyen did not understand he did not have to talk to Detective Vacca.[69] Here, when examining the totality of the circumstances, it is evident that Nguyen did not have the “requisite level of comprehension” of his Miranda rights to knowingly and intelligently waive them.[70]

An interpreter’s role is to facilitate communication between parties that speak different languages by translating a message from one language to another.[71] The interpreter’s goal in this scenario, as with the children’s game “Telephone,” is to ensure that the statement keeps its original meaning when it is passed from the suspect to the detective.[72] Here, in addition to mistranslating some of Detective Vacca’s statements to Nguyen, Father Dang mistranslated some of Nguyen’s responses to the point that the original meaning was not translated to Detective Vacca.[73] First, when Nguyen said “[t]o see a lawyer or to stay here now is the same,” Father Dang translated that phrase to Detective Vacca as “[o]k, doesn’t matter if I see an attorney or either I just rather talk to you.”[74] Next, Father Dang translated Nguyen’s statement “[b]ut he wants to ask about last night and I have to tell him what happened” to Detective Vacca as “[i]f you want to ask what happened tonight I will tell you.”[75] Both mistranslations to Detective Vacca “relayed a willingness or preference” that Nguyen did not express to Father Dang.[76]

V. Conclusion

In conclusion, by focusing only on what Father Dang conveyed to Nguyen, the majority failed to determine whether Nguyen knowingly and intelligently waived his Miranda rights. Instead, the analysis should have also examined what Nguyen said to Father Dang to determine whether Nguyen had the requisite level of comprehension of his rights. In this case, there were many instances of confusion between Nguyen and Father Dang, to the point that Nguyen did not have the minimal level of understanding regarding his Miranda rights necessary to knowingly waive them. To determine whether a suspect knowingly and intelligently waived his Miranda rights, a court should look at the totality of the circumstances regarding the advisement, being sure to examine what the suspect said in response to being advised of his Miranda rights.


1. U.S. Const. amend. V. [Return to text ]

2. 384 U.S. 436 (1966). [Return to text ]

3. Michigan v. Tucker, 417 U.S. 433, 444 (1974); Miranda v. Arizona, 384 U.S. 436, 444 (1966). [Return to text ]

4. 406 P.3d 836 (Colo. 2017). [Return to text ]

5. People v. Nguyen, 406 P.3d 836, 837 (Colo. 2017). [Return to text ]

6. Id. at 841. [Return to text ]

7. Brief of Appellant at 1, People v. Nguyen, 406 P.3d 836 (Colo. 2017) (No. 17SA37). [Return to text ]

8. Nguyen, 406 P.3d at 837. [Return to text ]

9. Id. [Return to text ]

10. Id. [Return to text ]

11. Id. This was Detective Vacca’s first time using Father Dang as an interpreter. Brief of Appellee at 2, People v. Nguyen, 406 P.3d 836 (Colo. 2017) (No. 17SA37). [Return to text ]

12. Nguyen, 406 P.3d at 837. [Return to text ]

13. Id. [Return to text ]

14. Brief of Appellee, supra note 11, at 35–40. For the suppression hearing, Nguyen submitted a certified translated transcript of the Miranda advisement. Id. at 3. The State stipulated to the accuracy of the translation. Id. [Return to text ]

15. Nguyen, 406 P.3d at 838; Brief of Appellant, supra note 7, at 1. [Return to text ]

16. Colo. Rev. Stat.§18-3-202(1)(a) (2016); Brief of Appellee, supra note 11, at 1. [Return to text ]

17. Brief of Appellee, supra note 11, at 1.[Return to text ]

18. Id. at 10. [Return to text ]

19. Brief of Appellant, supra note 7, at 3. [Return to text ]

20. Id. at 4. However, the trial court found Nguyen’s statement to be voluntary. Id. [Return to text ]

21. People v. Nguyen, 406 P.3d 836, 838 (Colo. 2017). [Return to text ]

22. Id. [Return to text ]

23. Miranda v. Arizona, 384 U.S. 436, 444 (1966). [Return to text ]

24. Id. [Return to text ]

25. Id. [Return to text ]

26. California v. Prysock, 453 U.S. 355, 359 (1981). [Return to text ]

27. Duckworth v. Eagan, 492 U.S. 195, 203 (1989). [Return to text ]

28. Miranda, 384 U.S. at 444. [Return to text ]

29. Moran v. Burbine, 475 U.S. 412, 421 (1986). [Return to text ]

30. Id. (internal quotations omitted). The totality of the circumstances mandates “inquiry into all the circumstances surrounding the interrogation.” Fare v. Michael C., 442 U.S. 707, 725 (1979). [Return to text ]

31. People v. Al-Yousif, 49 P.3d 1165, 1170 (Colo. 2002) (“[W]hether [the defendant] understood the Miranda warnings is a question inseparable from the constitutional question of whether his waiver was knowing and intelligent. Resolution of one necessarily resolves the other, i.e., if he understood, his waiver was unquestioningly valid, and if he did not understand, the waiver was invalid.”); see also People v. Aguilar-Ramos, 86 P.3d 397, 400, 402 (Colo. 2004); People v. Mejia-Mendoza, 965 P.2d 777, 781 (Colo. 1998). But see People v. Jiminez, 863 P.2d 981, 982–83 (Colo. 1993) (affirming the trial court’s ruling that the defendant was fully advised of his Miranda rights but “did not in fact understand his rights [when translated to him], because he did not, at least at that time, have the capacity to understand”). [Return to text ]

32. 965 P.2d 777 (Colo. 1998). [Return to text ]

33. Mejia-Mendoza, 965 P.2d at 782. The interpreter told the suspect “‘[n]othing is being used against you’ and ‘[j]ust because you say something you’ll be released,’” in addition to volunteering statements “both to [the suspect] and on his behalf to the detective, that were inaccurate.” Id. at 781.[Return to text ]

34. Id. [Return to text ]

35. 86 P.3d 397 (Colo. 2004). [Return to text ]

36. Aguilar-Ramos, 86 P.3d at 399. [Return to text ]

37. Id. at 400, 402. In the Miranda advisement, Detective Vacca used the “Spanish word for ‘carry’ rather than ‘remain’ as to the right to remain silent” and failed to accurately convey that the suspect’s statements could be used against him. Id. at 400. [Return to text ]

38. People v. Nguyen, 406 P.3d 836, 837 (Colo. 2017). [Return to text ]

39. Id. at 837. [Return to text ]

40. Id. at 839–41. [Return to text ]

41. Id. at 839 (emphasis added). [Return to text ]

42. Id.; Brief of Appellee, supra note 11, at 35, 38. [Return to text ]

43. Brief of Appellee, supra note 11, at 17. [Return to text ]

44. Nguyen, 406 P.3d at 839. [Return to text ]

45. Id. [Return to text ]

46. Id. at 840. [Return to text ]

47. Id. [Return to text ]

48. Id. at 839; Brief of Appellee, supra note 11, at 17–19. [Return to text ]

49. Nguyen, 406 P.3d at 840–41. All three of Nguyen’s arguments that the third and fourth Miranda warnings were not conveyed to him stem from Father Dang’s statement that: “if you do not have money to hire an attorney the court will instruct you, will appoint a person to you at no cost to represent you before asking questions, understand?” Id. at 840. First, Nguyen argued that he was not informed that an attorney would be appointed for him if he could not afford one. Brief of Appellee, supra note 11, at 17–18. Second, Father Dang’s use of the word “person” does not communicate that the court will appoint a lawyer. Id. Third, the statement “before asking questions” did not convey that Nguyen could have a lawyer before being asked questions by Detective Vacca. Id. [Return to text ]

50. Nguyen, 406 P.3d at 840–41. [Return to text ]

51. Id. at 841. [Return to text ]

52. Id. at 841 (Marquez, J., dissenting). [Return to text ]

53. Id. at 844 (Marquez, J., dissenting). [Return to text ]

54. Id. at 839. [Return to text ]

55. See id. at 839–40. [Return to text ]

56. Nguyen, 406 P.3d at 839–40. [Return to text ]

57. See North Carolina v. Butler, 441 U.S. 369, 374–75 (1979) (“Even when a right so fundamental as that to counsel at trial is involved, the question of waiver must be determined on ‘the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’”) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)); Nguyen, 406 P.3d at 842–43 (Marquez, J., dissenting) (“[T]he record contains no information about Nguyen’s familiarity with the adversarial nature of the American legal system. We know only that he spoke only Vietnamese.”); People v. Kaiser, 32 P.3d 480, 485 (Colo. 2001) (holding a developmentally delayed defendant was properly informed of and waived her Miranda rights because the interviewer modified the warnings “to the age and developmental level” of the defendant); People v. Jiminez, 863 P.2d 981, 983 (Colo. 1993) (affirming the trial court’s ruling after the trial court took evidence as to what the defendant understood in regard to his Miranda rights). [Return to text ]

58. See Nguyen, 406 P.3d at 841 (Marquez, J., dissenting) (“[T]he majority focuses exclusively on the initial articulation of rights translated to Nguyen during his Miranda advisement and ignores the remainder of the exchange between Detective Vacca, Father Dang, and Nguyen when the detective asked Nguyen if he wanted to waive his rights.”). The voluntariness of Nguyen’s statement was not an issue before the court. Id. at 839 n.2. [Return to text ]

59. Id. at 839. [Return to text ]

60. See id. at 837–41. The majority quotes a portion of the translated transcript in which Nguyen says a total of five words: “yes,” “yeah,” “yes,” “yes,” and “understand.” Id. at 837–38. [Return to text ]

61. See supra notes 31–37 and accompanying text; State v. Ortiz, 766 N.W.2d 244, 252–54 (Iowa 2009) (holding that, although the defendant signed a waiver of his Miranda rights, he did not knowingly and intelligently waive them because the written Spanish Miranda warnings he was given “made no sense” and the warnings that were read to him did not advise him that he could have a lawyer present before being interrogated). [Return to text ]

62. See supra notes 31–37 and accompanying text. In United States v. Castro-Higuero, the Eighth Circuit determined the defendant waived his Fifth Amendment right to remain silent after he was informed of his rights through an interpreter. 473 F.3d 880, 886 (8th Cir. 2007). The defendant stated he understood; the interpreter clarified, again reiterating his rights after he asked the interpreter a question; and the defendant stated he “want[ed] to say some things.” Id.; see also United States v. Hernandez, 93 F.3d 1493, 1501–02 (10th Cir. 1996) (“The record establishes that [the suspect’s Miranda] rights were adequately explained to her and that she understood those rights, and there was no indication she did not understand what [the interpreter] told her.”); Nguyen, 406 P.3d at 841, 845 (Marquez, J., dissenting) (“Considering the totality of the circumstances, and the advisement as a whole, I would conclude that Nguyen did not ‘minimally understand’ his Miranda rights, and therefore did not knowingly and intelligently waive them.”). [Return to text ]

63. See Nguyen, 406 P.3d at 844–45 (Marquez, J., dissenting). [Return to text ]

64. Brief of Appellee, supra note 11, at 39; see Nguyen, 406 P.3d at 844 (Marquez, J., dissenting). [Return to text ]

65. Brief of Appellee, supra note 11, at 39 (emphasis added); see Nguyen, 406 P.3d at 845 (Marquez, J., dissenting). [Return to text ]

66. See Nguyen, 406 P.3d at 845 (Marquez, J., dissenting). [Return to text ]

67. Brief of Appellee, supra note 11, at 40. [Return to text ]

68. Id. (emphasis added). [Return to text ]

69. See Nguyen, 406 P.3d at 845 (Marquez, J., dissenting). [Return to text ]

70. See id.; People v. Al-Yousif, 49 P.3d 1165, 1172 (Colo. 2002). [Return to text ]

71. See People v. Mejia-Mendoza, 965 P.2d 777, 781 (Colo. 1998) (“An interpreter really only acts as a transmission belt or telephone. In one ear should come in English and out comes Spanish.” (quoting United States v. Anguloa, 598 F.2d 1182, 1186 n.5 (9th Cir. 1979))). [Return to text ]

72. The Telephone Game, Ice Breaker Ideas (July 21, 2015), https://icebreakerideas.com/telephone-game/ [https://perma.cc/QS2Z-3Q4D]. In the game “Telephone,” players stand in a straight line and the first person whispers a phrase into the ear of the person on his or her right. Id. That person then whispers the phrase on to the next person until the phrase is whispered to the last person. Id. The last person then says the phrase out loud so everyone can hear how much the phrase has changed. Id. The game helps show “how small misconceptions can end up making a huge difference.” Id. [Return to text ]

73. See Nguyen, 406 P.3d at 845 (Marquez, J., dissenting). [Return to text ]

74. Brief of Appellee, supra note 11, at 39 (emphasis added). [Return to text ]

75. Id. at 40 (emphasis added). [Return to text ]

76. Nguyen, 406 P.3d at 845 (Marquez, J., dissenting). [Return to text ]