Vol. 76, No. 3, March
New Interpreter Code of Ethics
Formalizing the role of court interpreters as professionals improves
access to justice to persons who are deaf and to people who speak
foreign languages or are not fluent in English.
y enacting a code of ethics for interpreters,
the Wisconsin Supreme Court took an important first step to resolve one
of the most urgent problems of the trial courts - how to provide access
to justice to deaf persons and foreign language speakers. The new code
of ethics, codified as Supreme Court Rule 63, became effective on July
1, 2002, and is published in its entirety with the Rules of the Supreme
Court.1 Enactment of the code signifies the
high court's recognition of the need to formalize the role of court
interpreters as professionals.
In 1999, J. Denis Moran, the director of the Office of State Courts,
created the Committee to Improve Interpreting and Translation in
Wisconsin Courts (Interpreter Committee). To achieve geographical
diversity, Moran appointed members from many Wisconsin communities. To
achieve a diversity of viewpoints, Moran sought the views not only of
judges, clerks of court, and court administrators, who traditionally
comprise most court committees, but also of other persons who have a
stake in the integrity of the courts. For that reason, Interpreter
Committee members included not only appellate, circuit, and municipal
court judges, but also legislators, a prosecutor, and a member of the
defense bar. Perhaps the most significant contributions came from
foreign language (Hmong and Spanish) and sign language
interpreters. Meetings attracted remarkable public attention
and support; the observations and concerns of lay persons served as a
constant reminder of the importance of this issue to so many Wisconsin
In October 2000, the Interpreter Committee presented its report to
the supreme court.2 The
report recommended a comprehensive program of training, testing, and
certification for interpreters, and urged the high court to seek funding
to provide interpretation for all who need it regardless of the type of
case or ability to pay. Currently, counties receive limited
reimbursement for interpreters provided to indigent persons in a limited
array of proceedings.3 Finally, the
committee recommended adopting an interpreter code of ethics and
submitted a proposed code.
The supreme court adopted the committee recommendations and included
them in its 2001-03 biennial budget request. While budgetary constraints
precluded legislative support for the concept of providing
interpretation for all persons who need it in all types of cases, the
training, testing, and certification provisions were approved and
included in the budget presented to the governor. Ultimately, Gov.
McCallum vetoed all funds intended for training, testing, and
certification because of their fiscal implications.4 Since Wisconsin still does not test for language
proficiency by court interpreters for any language, and since there is
no certification program, even conscientious judges are at a
disadvantage when appointing an interpreter.5
The Need for Competent Interpreters
The frequency with which Wisconsin courts must rely on the services
of an interpreter to communicate with parties and witnesses has grown
dramatically in recent years. According to the U.S. 2000 census,
Wisconsin's Hispanic and Hmong populations doubled during the 1990s.
Brown County's Hispanic population grew by an astounding 470 percent
during the same period. Four Wisconsin counties have Hispanic
populations in excess of 5 percent: Milwaukee, Racine, Kenosha, and
Walworth.6 While obviously most persons of
Hispanic or Hmong background do not require interpreters, these numbers
nevertheless confirm what trial courts know firsthand: Wisconsin has a
serious need for qualified Spanish and Hmong interpreters.
Speakers of other languages also have become more numerous.
Consequently, judges must, with increasing frequency, find and appoint
interpreters for Russian, Polish, Somali, Laotian, Vietnamese, Bosnian
Serbo-Croatian, and Arabic speakers, among others.7 In addition, significant numbers of people are
deaf or hard of hearing. They, too, may require interpreters.
Without competent and honest interpreters, the courts can neither
understand, nor be understood by, a significant segment of the
community. An inability to communicate compromises the courts' ability
to decide cases intelligently and justly. This is not only an affront to
justice but also implicates broader societal costs. A court system that
is, or appears to be, disinterested in the voice of witnesses and
victims who are not fluent in spoken English discourages cooperation
with authorities. Wisconsin, still battling a severe crime problem, can
ill afford to do this. While it is in everyone's best interest that all
who can do so learn to speak English, the work of the courts cannot
Given these circumstances, the new code of ethics is a particularly
welcome change. As part of its submission to the supreme court, the
Interpreter Committee drafted a code of ethics based primarily on the
model code created by the National Consortium of State Courts but also
incorporated certain elements from other states' codes.8 The principal distinction from the codes of other
jurisdictions is that from the outset we in Wisconsin viewed the
challenge as one of access to the courts. This implicates not only
foreign language speakers but also persons who are deaf or hard of
hearing.9 For that reason, Wisconsin's new
interpreter code of ethics also draws from the Registry of Interpreters
for the Deaf and has a greater recognition of the Americans with
Ethics Code Defines Interpreter Duties
The immediate significance of the Interpreter Code of Ethics, SCR 63,
is that it defines the duties of court interpreters. In doing so, the
code not only informs court interpreters of their duties but also
educates judges and lawyers as to what they should expect from qualified
interpreters. The code of ethics implicitly recognizes, consistent with
the critical role interpreters have come to play in the administration
of justice, that court interpretation is a professional endeavor worthy
of respect. While the new code of ethics cannot, of itself, generate
competent interpreters, its adoption should naturally lead to higher
expectations and a higher level of performance from interpreters.
The code should forever dispel the notion that virtually anyone with
a working knowledge of American Sign Language or a foreign language can
step into a courtroom and fulfill the duties of a qualified interpreter.
Even to be bilingual is not enough, a concept that all too often is
still poorly understood. To be fluent in English and in the language of
the foreign language speaker or of the person who is deaf (usually, but
not always, American Sign Language) is necessary. In addition, to
interpret reliably, the interpreter must be familiar with dialectical
variations and slang terminology. If the listener is to be able to
distinguish between sincerity and dissimulation, if the trier of fact is
to be able to evaluate credibility, court interpretation must be
faithful to detail and capture tone and manner. All of this must take
place in a setting generally controlled by others, that is, by lawyers
This leads to another important requirement of court interpretation -
an absolute command of the language of the courts. Some of our most
common legal terms are part and parcel of a jurisprudence wholly unlike
the legal systems of jurisdictions in which the primary language is not
English. Therefore, even a fully bilingual person may at first find it
challenging to translate historic terms such as "probable cause,"
"preliminary hearing," "proof beyond a reasonable doubt," or the more
current inventions of our new "truth-in-sentencing" laws, terms such as
"initial confinement" and "extended supervision." Should the interpreter
translate Latin terms such as "prima facie" or "mens rea" that are
commonplace in American courtrooms? These questions pale in significance
by comparison to what a Hmong language interpreter revealed: there is no
word in Hmong for "constitution."
To navigate in the courtroom, the interpreter must have a basic
understanding of the substantive framework of the hearing.
Interpretation is intrinsically a cognitive process. Faithful
interpretation is not just about language skills, memory, or stamina. It
requires an understanding of what is being said. In other words, to
interpret well, an interpreter should have at least a general
understanding of the nature of the proceeding, of its purpose, and of
what relief, if any, is being sought.
But the challenge of court interpretation is even more complex than
this. It flows from the notion that language itself is the primary tool
of the courts. Good lawyering, whether during witness examination or
legal argument, is about the use of language. Lawyers routinely engage
in exchanges in which meaning lies in the subtext of what is said. These
processes may implicate the arts of exaggeration, sophisticated
obfuscation, and subtle evasion. There is an inherent ambiguity to
certain situations and certain legal concepts. To navigate these gray
areas may delight legal practitioners but bedevil and weary the finest
interpreters. A good court interpreter must master more than the
vocabulary of the law.
There are also the peculiarities and limitations of language. It
would seem that languages should mirror each other. Yet while virtually
all languages have words for table and chair, the translation of other
words is less readily accomplished. Spanish speakers, for instance, will
readily say "pistola" for an automatic handgun; the distinction between
a pistol and an automatic weapon is not drawn as clearly as in English.
The translation of terms cannot at times be perfectly achieved because
there is no perfect match in the other language. For this reason, many
English speakers have adopted words, such as "déjà vu" and
"angst," from other languages. Certain words are so apropos that with
time they are fully integrated and lose their foreign character; we have
done this with the Spanish word "guerrilla."
Sometimes the target language fails to offer a perfect match.
Interpretation requires judgment. In the space of a fraction of a
second, the interpreter must select, from the range of words in his or
her vocabulary, that word or words that most precisely reflect the
meaning of the speaker. These swift but nuanced decisions underlying
interpretation become unreviewable by a higher court. (While more and
more often we prepare an audio record of the interpretation of witness
testimony, we do not record interpretation provided at the counsel table
to criminal defendants. Even if we were to do so, review would require
listening to the interpreted trial and comparing it to the transcript.
Such a cumbersome and time-consuming process is rightly regarded as
generally impossible.) In a legal system in which appellate courts and
public observers scrutinize the judgments of the lower courts and the
performance of lawyers, the word of the interpreter becomes the
Therefore, the integrity of the court interpreter must be above
question. Unfortunately, the Interpreter Committee repeatedly heard
reports of disturbing practices. These included inmates providing
interpretation for other inmates; husbands criminally charged with
domestic abuse interpreting for victim wives; and social workers present
in court in a victim support role pressed to interpret for the accused.
There also were references to law enforcement officers interpreting for
All of these practices are rendered impermissible under the new code.
It is comprised of 10 separate rules, each of which is followed by
advisory comments. The rules are presented in an accompanying sidebar.
The code applies to sign and foreign language interpreters as well as
real-time court reporters when providing access to people who are deaf
or hard of hearing.
The new code of ethics has recently been the subject of judicial
education. It will continue to be addressed at judicial conferences. It
is equally important for lawyers to become familiar with SCR 63. Lawyers
who become involved in litigation in which interpreters are used should
consult the rules to learn what to expect. Lawyers also should learn the
code so that they too can refrain from improper conduct.
One last welcome sign of change is that certain statutory language
recommended by the Interpreter Committee recently became law. These new
provisions include definitions of "limited English proficiency" and of a
"qualified" interpreter.10 The spirit that
animates the new code of ethics is readily apparent in the statutory
definition of a qualified interpreter as someone who "readily and
accurately interprets, without omissions or additions, in a manner that
conserves the meaning, tone, and style of the original statement,
including dialect, slang, and specialized vocabulary."11
It is likely that the need for competent interpreters will continue
to be with us. Much work remains to be done to make access to the courts
a reality. But for now, our highest Wisconsin court has taken a firm
step in the right direction.
1 Rule 63 (the
interpreter code of ethics) can be found at www.courts.state.wi.us/circuit;
and at www.courts.state.wi.us/rules/CHAP63.pdf.
2 Committee to
Improve Interpreting and Translation in the Wisconsin Courts, October
2000 (Report), available at www.courts.state.wi.us/circuit/pdf/Interpreter_Report.pdf.
Wis. Stat. § 885.38(3)(a).
4 2001 Wis. Act
16, § 9147, and § 395 at 20.005 at 20.625(1)(c); Governor's
2001-03 Budget Veto Message at 112.
5 Despite the
extraordinary challenges posed by lack of funding, the Office of the
Director of State Courts obtained funding from the Department of
Workforce Development Office of Refugee Services for orientation
programs to train court interpreters on ethics, English legal
terminology, court procedure, and basic legal interpreting skills. Six
programs took place in 2002, and four more will be scheduled for 2003.
Interested persons should contact Marcia Vandercook, 110 E. Main St.,
Suite 410, Madison, WI 53703; (608) 267-7335; email Marcia.Vandercook@courts.state.wi.us.
6 U.S. Census
Bureau 2000 Census, www.census.gov; U.W.-Madison Applied Population
Laboratory, Wisconsin's Racial and Ethnic Diversity (2000),
available at www.ssc.wisc.edu.
Report, supra note 2, app. 2 (Refugee Population of Wisconsin
Interpretation: Model Guides for Policy and Practice in the State
Courts ch. 9 (National Center for State Courts 1995), available
9 Registry of
Interpreters for the Deaf, Code of Ethics, www.rid.org/coe.html; Americans
with Disabilities Act, 42 U.S.C. § 12101 et. seq., Title II
10 Wis. Stat.
§ 885.38 (1). The complete text of all interpreter statutes (which
are codified at diverse places of the Wisconsin Statutes) can be found
11 Wis. Stat.
§ 885.38 (1)(c)3.