Overcoming the Language Barrier in Court

by Dianne Molvig

When in need of a court reporter to accurately record a trial's proceedings, no judge would turn to someone who claims to know "a little shorthand." Often, however, that's the very approach used to enlist a court interpreter's services.

Anybody could be fair game to be recruited as an interpreter. It may be a police officer, the defendant's brother-in-law, a witness, a fellow prisoner, an employee from another agency, or just somebody from an office down the hall who studied "a little Spanish" in college. Some may be eager to help, to be sure, but they often lack language proficiency and the additional skills needed to be adept linguistic go-betweens.

Such scenarios present abundant pitfalls. Inaccurate or incomplete translations can jeopardize a defendant's rights, and even lead to wrongful punishment. A defendant's relative acting as interpreter might soften testimony during translation, toning down the seriousness of the alleged crime, and thus potentially damaging the victim's right to reparation. A social worker who's worked with a defendant or victim faces serious conflicts of interest when called upon to put aside the role of client advocate to become an objective, neutral courtroom interpreter.

All these hazards feed into two overarching concerns: the accountability of the court and the integrity of its record. What's more, if communication breakdowns ultimately result in a questionable trial outcome, they pave the way for appeals, which consume still more court time and resources.

The missing piece to prevent such problems is a corps of qualified interpreters to serve the state's courts, according to the Committee to Improve Interpreting and Translation in the Wisconsin Courts, which released its report in October. The committee, which was appointed by Director of State Courts J. Denis Moran, notes that the interpreter element is becoming more critical in our courtrooms as our society grows in diversity.

"The look of the country is changing, and so the look of the courtroom is going to have to be different," says committee member Francisco Araiza, an attorney with the State Public Defender's Milwaukee Criminal Trial office. "We're used to walking into a courtroom and seeing the judge, bailiff, clerk, and court reporter. Now you'll see the court interpreter there, too, as part of the new look of the courtroom in the 21st century."

Different Languages, Same Barrier

Demographic data portray the degree of change in Wisconsin. The state's Hispanic and Asian-Pacific Islander populations each grew by more than 50 percent during the 1990s, according to estimates of the U.S. Census Bureau Population Estimates Program. The bureau projects that high growth rates for these ethnic groups will continue for the next 25 years.

Meanwhile, refugees from the former Yugoslavia, the former Soviet Union, Africa, and other parts of the world are migrating to the state in growing numbers, as tracked by Wisconsin's Office of Refugee Services.

It takes time to master the predominant language of a new homeland; in the meantime, people need access to the justice system. Perhaps nothing is more terrifying than appearing in court with your freedom, parental custody, or livelihood at stake - and not being able to comprehend a word of the proceedings. "Our courts are intimidating even to people who understand English," notes Milwaukee County Circuit Court Judge Elsa Lamelas, chair of the committee. Multiply that intimidation many-fold for someone whose English skills are minimal or nonexistent.

The same situation exists for others who were born in this country, but who face other English language obstacles: people with hearing loss, deafness, speech impairments, or other disabilities. Many of them rely on sign language to communicate.

While sign language and other non-English language interpretation have been dealt with as separate issues in several states, Wisconsin's committee chose to address them together. "We wanted to make sure the advocacy entities were not going at cross purposes," explains District II Court of Appeals Judge Richard Brown, vice chair of the committee. "The needs are the same. It's just the language that's different. So why not put it together as a cohesive plan? That's what we decided to do at the outset."

Clerks of court, judges, interpreters, attorneys, court administrators, legislators, and representatives from social service and government agencies served on the committee. Committee members voiced diverse primary concerns, depending on their vantage points. "For some, it was the judges' need to hear evidence," Araiza points out. "For clerks of court, it was efficiency in the courtroom, and for those inclined toward law and order, it was the victim's right to communicate with the judge. For me as a public defender, it was the need to protect defendants' rights. It was interesting in the committee to see people from different backgrounds having different reasons for wanting the same thing. We all want qualified interpreters."

Current Interpreter Usage

Committee member Jim Seidel has been court administrator for the 9th district, covering 12 northeastern counties, for 19 years. He's seen major demographic changes in that time, with Hmong children now accounting for 25 percent of Wausau's school population, plus there's a small but growing number of Spanish-speaking people. "In my district, some counties never need interpreters, some need them all the time, and some are in between," says Seidel.

The same could be said for interpreter needs statewide. Needs vary, depending on ethnic group distribution across the state. The committee's report states that significant Hmong populations live along the eastern edge of the state, from Outagamie and Brown counties down to Milwaukee, as well as in Marathon and Portage counties, La Crosse, and Eau Claire. Spanish speakers tend to concentrate along the state's eastern edge, from Outagamie and Brown counties down to Kenosha and Walworth counties, with a large portion in Milwaukee, and a fair number around La Crosse.

To help courts in his district find interpreters when they need them, Seidel prepared a list that's "nothing more than a list of bilingual people who have said they're willing to interpret for the court," he says. Like Seidel, court administrators in other districts have prepared similar lists. Courts might hire from these lists or, as pointed out earlier, simply recruit a relative or whoever is available.

To find out more about current interpreter usage, the committee surveyed all county clerks of court in the state. Clerks in eight counties reported a heavy need for Spanish interpreters, with Milwaukee County employing a full-time Spanish interpreter on staff due to demand. Fifteen counties make high use of Hmong interpreters. In addition, surveyed clerks listed 16 other languages they have needed on occasion: Polish, Korean, Cantonese, Punjabi, Arabic, Somali, German, and more. All told, about two-thirds of Wisconsin's counties have used interpreters at one time or another. Again, this reflects the use of hired interpreters, not family members and others put into service on the spot as "volunteers."

Even a hired interpreter may, however, be little better than none at all. "Assume that up in Crandon they need somebody who speaks Polish," Seidel says. "We have people on the list, but they may have learned Polish from their grandmothers. The judge qualifies those individuals as experts, but they may be far from it."

The solution the committee proposes is to create an interpreter training and certification program, coupled with a court rule change requiring judges to use a certified interpreter whenever one is available. Wisconsin's training and testing program would be modeled after those in other states. The National Center for State Courts and a consortium of 24 states, including Wisconsin, have pooled efforts to develop and share training and certification testing materials.

Bilingualism Not Enough

Special training is critical because interpreters need much more than language skills. "There's this sense that because a person speaks a language well, that person is able to act as an interpreter," Lamelas notes. "But being bilingual is a prerequisite to being an interpreter; it's not the same as being an interpreter."

Court interpreters must be able to listen and translate back and forth easily, accurately, and quickly in the midst of court proceedings. Qualified interpreters learn how to execute this complex task through memory skills training. Court interpreters also must understand legal terminology and procedures, and be able to convey concepts for which no word may exist in the non-English language. Some languages, for instance, have a word for "right" (as opposed to "wrong"), but no word for "rights." A careless translation can convey an entirely incorrect meaning.

Similar challenges arise for people with hearing impairments. "I can give a personal example," Brown says. "There's such a thing as the 'deaf nod.' People who are deaf or hard of hearing often nod their heads to convey that they're concentrating and trying to listen, not that they understand." Thus, a nod in response to a judge's question about waiving the right to an attorney may not mean "yes," but rather "I'm trying to follow what you're saying."

When translating, interpreters must be able to comprehend and convey everything from legal terminology to slang, even profanity. Again, wrong translations can wreak havoc. Lamelas points to an example: the use of the word "kilo" as a slang term for "cent" among Cubans. "In the context of today's drug cases," Lamelas notes, "if someone hears the word 'kilo,' it may sound bad, when all the person is saying is 'I don't have a cent to my name.'"

Not only must interpreters possess complex language and translation skills, but they must be aware of the role interpreters should play in the courtroom. Many judges report scenes in their courts in which they ask the defendant a question, through an interpreter, after which the interpreter and defendant engage in a minutes-long conversation culminating in a translated response of "yes" or "no." The judge is left wondering what transpired. Was the interpreter giving the defendant legal advice, or coaching the defendant in how to respond?

In fact, the interpreter's obligation is to stick to the task of translating from one language to another and back again. If the defendant doesn't understand a judge's question, the interpreter should say, "I don't understand," allow the judge to explain, and then translate that explanation to the defendant. Interpreter training would cover these and other ethical issues, which the committee also addresses in a proposed code of ethics for interpreters.

From the judge's standpoint, qualified interpreters offer the benefit of being able to understand immediately what is transpiring in his or her court. "The better the interpreter is," Lamelas notes, "the closer the judge will be to the ultimate source of information, the better the judge's grip on the facts will be, and the better the decision can be."

Clerks of court cite additional advantages. "If we had more qualified interpreters available, we'd save time up front," says Diane Fremgen, Winnebago County clerk of court and committee member. "We wouldn't have to call around trying to find someone. And there would be less likelihood of having to adjourn or postpone hearings" because of lack of interpreter availability.

Beyond that, certification would assure court personnel of what they're getting, rather than having to rely on interpreters' self-assessments of their capabilities. With certification, "we could have confidence in the people on the roster," says committee member Gail Richardson, 5th District court administrator. That roster could categorize people at different skill levels, so courts could hire someone suited to the case.

For instance, someone with basic interpreting skills, whose pay rate would be less, may be sufficient for a hearing to set a court date, while a criminal trial would entail hiring an advanced interpreter at a higher fee. "If we had a roster of interpreters who had been trained, tested, and categorized," Richardson points out, "we'd know how best to apply our resources."

Who Pays?

To help cope with the existing need for interpreters, some agencies around the state already conduct training. For instance, the Hmong Mutual Aid Associations around the state provide interpreter training, reports committee member Mai Zong Vue, a specialist with the Office of Refugee Services in the Department of Workforce Development. She knows of at least three Hmong interpreter businesses now being launched. "There's already internal training going on," Vue notes, "but [the state program] adds another portion to enhance skills in the legal area."

Western Wisconsin Legal Services (WWLS) in La Crosse also has organized training on occasion, with an emphasis on educating court personnel about how to use interpreters and familiarizing interpreters with their courtroom role. When WWLS managing attorney Bob Henderson heard about the state's proposed court interpreter program, "I breathed a sigh of relief that the state courts are headed in that direction," he says. "Otherwise this [training] is just going to have to be repeated over and over again on the local level all around the state."

A similar sense of relief might arise from county boards which, under the current system, must pay the major portion of the costs of providing interpreters in circuit courts. The state reimburses the counties at the rate of $35 per half day, plus mileage, but the going rate for a professional sign or foreign language interpreter averages about $40 per hour. Counties must pick up the difference. In 1999, interpreter billings totaled more than $500,000 (including freelance interpreters and the $48,000 annual salary for Milwaukee County's full-time staff interpreter). State reimbursements covered only a third of that total.

The result is a financial strain on county budgets. That's true for counties that use interpreters often and for counties that rarely need to use one. "Even in counties where the need is small, the clerks of court say this is a problem," points out Marcia Vandercook, senior policy analyst in the Office of Court Operations and staffperson for the court interpreter committee. "That relatively small need must be paid for out of a relatively small budget. Depending on the language involved, this can break the bank in a small county." For example, last year Barron County spent roughly $1,400 on interpreter services for just one trial, which required bringing in a Somali interpreter from the Twin Cities.

But a side effect of this situation is even more troubling. When judges feel pressure from their county boards to hold down court costs, they're less likely to hire an interpreter at all. They'll rely on a relative, a local foreign language teacher, or whoever is at hand for no cost. "If the counties were reimbursed for interpreters' fees in full by the state," Brown says, "then judges wouldn't have to think about county board politics. The sole question before them would be whether justice is being served in their courtroom."

Raising the state's reimbursement to be more in line with market rates for interpreter services would require a change in Wisconsin Statute section 885.37, which sets the criteria for court appointment of interpreters at public expense. The committee seeks other statutory changes as well.

For one, the current statute requires courts to use interpreters for just four types of cases: criminal, children in need of protective services, juvenile offenses, and mental commitments. Certainly, the need is compelling in such cases. But civil matters also stir trauma in people's lives, whether it be a divorce, disputed child custody, or threatened eviction. Even a driver's license suspension can have dire consequences if it means losing the ability to get to work to support one's family. Thus, the committee recommends requiring interpreters for all court proceedings, both civil and criminal.

The committee also calls for removal of the current indigency requirement. The current statute authorizes judges to appoint interpreters at public expense only if a party, witness, or parent is indigent. The committee maintains that court interpreters should be available to everyone who needs them, as a matter of access to justice. Just as courtroom participants don't pay extra for the court reporter to keep an accurate record, or for the bailiff to keep order, they shouldn't have to pay for an interpreter to facilitate communication.

"Ultimately, we came to feel that the interpreter is there for the court, not for the parties," Vandercook says. "The court has to be accountable for the way proceedings go. It's the court's responsibility to make sure communication is taking place."

Toward Inclusiveness

The committee's proposed package comes with a price tag of just over $2 million for the 2001-03 biennium. Feeding into that figure are several factors: raising state reimbursement levels to counties for interpreters' fees; expanding the current statutory requirements to include civil cases and nonindigent parties; the growing use of certified interpreters as court personnel become better educated about the benefits; and the costs of developing and implementing a statewide language interpreter training and certification program. (Sign language interpreters would receive training and legal certification through the National Registry of Interpreters for the Deaf, rather than from the state, but they would undergo additional orientation to courtroom procedures and the code of ethics.) By following its recommendations, the Committee report predicts "Wisconsin can expect to have a significant and respectable court interpreter program within five years."

As the proposal makes its way through the executive and legislative branches, committee members are hoping the entire program meets approval, rather than merely parts of it. The program's pieces intertwine, the committee emphasizes. "This is a cohesive plan, a total plan," Brown points out. "The plan suffers if one element is missing."

For instance, expanding statutory coverage to include civil cases, but dropping the training/certification portion of the proposal, would result in a demand for qualified interpreters that far exceeds the supply. Court personnel would still face frustration in trying to find enough interpreters, and they'd still have no way of knowing if the interpreters they hire are truly qualified.

On the other hand, adopting the training and testing program without boosting the state's reimbursement to counties would lead to other dilemmas. Counties would be hard pressed to pay for interpreter services, and qualified interpreters thus would find it difficult to get enough work to make a living. What incentive would there be for anyone to go through the training and testing program?

Committee members realize that some decision-makers may doubt whether a statewide court interpreter program is necessary at all. Not everyone has the vantage point of the committee members, who have spent a year immersed in studying the issue. "This can be a cold subject when you look at it in the abstract," Seidel says. "You can always find reasons not to spend the money - if you don't have an awareness of what's happening when we provide no interpreter or an unqualified one. We're talking about people's rights."

Some might argue that people who immigrate to this country take responsibility for adapting to the culture and learning the language. The intention of the court interpreter program is not to advocate that people avoid learning English, Vandercook counters, but to give people a means to cope with their immediate legal problems while they're learning the language. "If people feel shut out of the system," she says, "then they think, 'What does this country have to do with me?' So they choose to stay in their own little ethnic enclave, and that's when they don't learn to speak English."

Isolation can spiral into much larger problems that affect our entire society: alienation, antagonism, even violence. "When you have different cultures living together," Araiza says, "the last thing you want is for people to feel alienated. Countries all over the world are falling apart because people can't get along. But if people can go to the courthouse to vent their problems and feel satisfied that they were dealt with fairly, then we have a cohesive country. Otherwise, people will take their fights to the streets."

Wisconsin Lawyer