Resources
for Learning About Court Interpreter Issues
Se Habla Everything: The Right to an Impartial,
Qualified Interpreter
By Francisco Araiza
A court reporter's verbatim transcript has little value if it
contains an unqualified interpreter's false account of the words of a
non-English-speaking person. Read why and how courts and attorneys
should locate and use qualified interpreters.
Wisconsin has yet to join the
federal system and other states in requiring certification before
language interpreters are allowed to appear in court. Even so, existing
law requires courts to use competent interpreters. This overview
explores the need for impartial and qualified language interpreters in
state courts, the laws that have elevated that necessity to a right, the
threshold that must be crossed before the right kicks in, the
qualifications courts should require of prospective interpreters, and
the procedure to obtain and to use a court interpreter.
The need for impartial and qualified interpreters
"... for no situation is more full of anguish than that of an
innocent accused who cannot understand what is being testified against
him." 1
With 13 percent of the United States population speaking a language
other than English, it is no surprise that many non-English-speaking
witnesses, victims and defendants appear daily before city, county and
federal courts nationwide. Citing both time and financial constraints,
courts frequently allow a relative or friend of the non-English-speaking
party or a bystander to interpret the proceedings. At times, court staff
such as clerks or bailiffs, or even witnesses in the case before the
court, have acted as interpreters for the non-English-speaking
party.
However well-intentioned the inexperienced volunteer interpreter, and
regardless of how well they may speak the second language, it takes much
more than the knowledge of two languages to interpret accurately.
Interpreters must be able to interpret simultaneously in a court of law
while attorneys are speaking at lawyer speed, speak the party's dialect
within the second language, and use words conveying the tone and meaning
contained in the phrase of the original speaker. In some instances,
what was said may be less important than how it was
said. The words "be quiet" and "shut up" may have the same meaning, but
they convey it on different levels. There are many synonyms within the
English language, as with any language.
When a document states the words "appoint an attorney," the
well-intentioned but inadequately trained interpreter may convey the
words "point to an attorney," which occurred recently in a case before
the Wisconsin Supreme Court. 2 Certified or
qualified interpreters are trained to find the terms that best convey
the original message.
More troubling, there are cases where the interpreter is not only
unqualified to interpret, but where conflicts of interest might
compromise the interpreter's impartiality. For instance, in a Milwaukee
circuit court an advocate for battered women was assigned to assist the
victim in a domestic violence case. The same advocate then was sworn in
to interpret during the victim's impact statement at her boyfriend's
sentencing hearing. The victim wanted the court to be lenient with her
boyfriend; they had reconciled. We cannot be sure that the
advocate-for-battered-women-turned-interpreter had the same feelings
regarding the appropriate sentence.
The right to an impartial and qualified interpreter
"... as a matter of simple humaneness." 3
Even before the Wisconsin Legislature enacted the statute providing
interpreters, the supreme court held that, as a matter of fairness and
sound judicial administration, a defendant had a right to an interpreter
if such a defendant did "not understand English sufficiently to confer
with his attorney or reasonably understand testimony given in English at
his preliminary hearing or trial." 4
The Legislature codified the supreme court decision concerning
interpreters for persons with language difficulties together with the
statute covering interpreters for persons with hearing or speaking
impairments. Section 885.37 of the Wisconsin Statutes makes qualified
interpreters available for persons who have a language difficulty
sufficient to prevent them from communicating with their attorney,
reasonably understanding the English testimony or reasonably being
understood in English. 5 The statute applies
in actions where:
1) the person is charged with a crime;
2) the person is a child or parent subject to chapter 48, the
Children's Code, or to chapter 938, the Juvenile Justice Code;
3) the person is subject to chapter 51, the Mental Health Act, or to
chapter 55, the Protective Service System, or
4) the person is a witness in one of these proceedings.
The statute allows courts to authorize the use of interpreters in
actions or proceedings other than those mentioned above. The extent to
which an indigent defendant is entitled to a court-appointed interpreter
under constitutional due process and under the statutory right to a full
and fair hearing in civil actions, such as takings by eminent domain,
has not been fully litigated.
The right to an interpreter in criminal cases derives from the Fifth,
Sixth and 14th amendments to the U.S. Constitution; specifically, the
due process clauses of the Fifth and 14th amendments, and the Sixth
Amendment's confrontation clause (right to cross-examine witnesses and
right to be "present" in court) and right to notice of the charges and
assistance of counsel.
The Second Circuit Court of Appeals has held that failure to provide
an interpreter whenever appropriate "inevitably hamper[s] the capacity
of [the defendant's] counsel to conduct effective cross-examination."
The court considered the presence of an interpreter to be integral to
the right to be present at one's own trial, explaining that for the
right to be present to have any meaning, a criminal defendant must
possess "sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding." 6
Honoring the Constitution's requirement that defendants be informed
of the nature and cause of the accusations against them, a federal judge
for the Eastern District of New York required the prosecution to provide
free translations of indictments and other key documents in a complex
case. 7 The case involved 18
non-English-speaking defendants charged in several related cases
alleging narcotics and money-laundering crimes. The court ordered the
government to provide a translation of the indictment and relevant
portions of the statutes mentioned in it, a translation of the written
plea agreements, the presentence reports and any other key documents the
court deemed necessary during the case. The court noted that in the age
of computers and boilerplate indictments the cost to provide the
translated indictment and the statutes would be minimal. Balancing the
prosecution's interest in economically administering criminal law and
the defendant's constitutional rights, the court placed more weight on
the constitutional requirement.
Determining who gets an interpreter
"Yet how high must the language barrier rise before a defendant
has a right to an interpreter?" 8
The right to an interpreter does not attach automatically to every
foreign-born defendant, nor to every witness with a seemingly
unpronounceable surname. Instead, the U.S. Supreme Court has given trial
courts wide discretion in determining when the use of an interpreter is
appropriate. 9
In a similar fashion to concerns regarding mental competency and
requests for competency hearings, attorneys can provide notice of the
language barrier to the court orally on the record. They also may send
written notice in advance of the court date, following up with a phone
call to the clerk to ensure an interpreter will be available on the next
court date.
Due process considerations dictate that whenever an attorney advises
a court that a defendant has a significant difficulty in understanding
the English language, the court must:
1) make it unmistakably clear to the defendant that she or he has a
right to a court-appointed interpreter if the court determines that one
is needed; and,
2) determine whether such language difficulty would interfere with
the defendant's ability to comprehend the proceedings and to communicate
with counsel.
The factors the trial court may consider in making its determination
include, among others: the level of the defendant's understanding; the
defendant's ability to speak English; the complexity of the issues and
testimony presented during the trial; and the language ability of the
defendant's counsel.
It is important to remember that only defendants themselves can waive
the presence of an interpreter.10 Such
waivers should be done on the record and in very limited circumstances,
for example, during a scheduling conference.
In any event, bilingual attorneys should not act simultaneously as
advocate and as interpreter. Logical reasons for this abound: The
attorney may miss something being said in court because he or she is
busy interpreting for the defendant; legal malpractice insurance may not
cover the added interpreter function; conflict of interest issues may
arise if the attorney is not completely impartial to the information
given to or by the defendant or if the defendant responds with
confrontational words that the attorney would prefer the court did not
hear.
The right to an interpreter
does not attach automatically to every foreign-born defendant, nor to
every witness with a seemingly unpronounceable surname. |
After determining that an interpreter is necessary, the court must
inform the parties of their right to have a qualified interpreter, and
if they cannot afford one, of their right to have an interpreter
provided at the public's expense. The Director of State Courts pays for
in-court interpreters; in criminal cases, the State Public
Defender pays for interpreters appointed for defense counsel's
out-of court use.
Locating an interpreter
Attorneys should inform the clerk of the assigned court as soon as
they become aware of the language difficulty, preferably before the
court date so the clerk can find an interpreter. Especially in cases
involving a second language not frequently encountered in the particular
court, failure to give enough advance notice to the clerk probably will
result in a long wait on the court date, or an adjournment.
Some attorneys decide to obtain an interpreter themselves. The
statute does not prohibit this, although the opposing party presumably
should be permitted to voir dire the interpreter to assure competence
and impartiality.
If no qualified interpreter is available to attend in person and the
court proceeding is a scheduling conference, a motion to adjourn or some
similar uncomplicated short appearance, the court may conduct the
hearing with an interpreter present via telephone.11 Sometimes judges and attorneys have to decide
between leaving a person in custody for the following day when an
interpreter will be available in person, or agreeing to the short
telephonic conference.
The long-distance carrier AT&T provides interpreters by calling
its language line and asking for an interpreter for the specific
language needed. 12 It provides services
for a fee in 140 languages. AT&T's language lines are (800) 628-8486
and (800) 752-6096
Determining who may interpret
The relevant Wisconsin statute dictates that a "qualified"
interpreter will be appointed once a court determines that a person
needs an interpreter and is unable to afford one. The Second Circuit
Court of Appeals referred to a "competent" interpreter when it explained
the right to an interpreter.13
Determining whether an interpreter is "qualified" varies from court
to court. Some states and the federal courts have instituted
certification processes to qualify prospective interpreters. Those
certifications seek to ensure that the non-English-speaking defendants
hear the court proceedings with the same degree of accuracy and clarity
of language as the English-speaking defendants. Certification
requirements may include a combination of education and proficiency
testing. The federal certification process is the most thorough and
well-regarded. It consists of a two-day examination covering every
aspect of translating and simultaneous and consecutive interpreting.
In Wisconsin, however, a certification process has yet to be
established. Meanwhile, individual judges determine whether to allow a
person to act as an interpreter based upon the type of proceeding,
complexity of the case, the experience and education of the prospective
interpreter, the defense counsel's ability to speak the defendant's
native language, and the availability of experienced court interpreters
in the area.
Until such a time when a certification program is in place, attorneys
should voir dire prospective interpreters to qualify them as experts.
Questions regarding education, experience, biases and knowledge of legal
vocabulary in the second language are relevant.
Regrettably, in many cases in Wisconsin, relatives who speak only
slightly better English than the defendant, witnesses to the defendant's
case, or court employees often are asked to interpret without any
inquiry by either the judge or attorney concerning their language
proficiency and their interpreting ability or training.
Courtroom stories throughout Wisconsin illustrate the hazards of
using bystanders as interpreters. An elderly woman was asked to
interpret. She entered the courtroom carrying a foreign language
dictionary, saying, "Oh boy, this is going to be fun; I haven't spoken
Spanish since high school." On a different case, the social worker
assigned to a child abuse case interpreted the testimony for a witness
in court. The witness said a word in Spanish which the social worker
interpreted to the court as "'raped' the child." The witness on the
stand, understanding just enough English to know what the word rape
meant, jumped up and shouted at the interpreter and at the judge,
saying, "No, no, not raped. I said hurt, not raped." The Spanish word
later was found to mean "hurt," "damage" or "injure." The cause of the
mistake is irrelevant; the fact that mistakes of such magnitude may be
occurring and going unnoticed in other cases is disturbing.
A common mistake even some experienced interpreters make is to
"correct" the testimony of the person on the stand. The importance of a
literal interpretation is shown in Santiago motion
hearings.14 In such motions, one
interpreter interprets for the defendant, while a second interpreter
interprets for the witness. The witness usually is a police officer
testifying how that officer gave the Miranda 15 warnings to the defendant in the non-English
language. The witness's interpreter, knowing the Miranda
warnings by heart, sometimes tends to recite them verbatim from the
standard English form, regardless of how the testifying police officer
recites them in the foreign language.
Such paraphrasing defeats the purpose of the entire hearing, which is
to find out whether the words used by the police officer to deliver the
Miranda warnings in the non-English language fully
conveyed the same information as the Miranda warnings in
English.16
Choosing an interpreter should be approached with the same care that
courts take to obtain qualified, certified court reporters. Court
interpreters and court reporters provide a very similar service to the
court and to the record. Whether the task is translating or
transcribing, courts must develop an accurate record. To date, the
author is not aware of a single court where a bailiff, a bystander or a
clerk trained in shorthand was asked to act as a court reporter.
Court interpreters should have the equivalent of a college education
in translation and interpretation and read, write and speak both English
and the second language with native-like fluency. They need to
demonstrate proficiency in both consecutive interpreting and
simultaneous interpreting. In consecutive interpreting, the speaker and
the interpreter speak one at a time; the speaker says a few sentences
and pauses while the interpretation takes place. It takes more training
and talent to conduct simultaneous interpretation, that is, where the
original speaker does not pause and the interpreter listens to the
speaker and interprets into the second language at the same time.
Interpreting may not be an exact science, but certified federal
interpreters have shown that, with the appropriate training, it is
possible to achieve almost scientific accuracy. The interpreter (filter)
used to decipher the message should be as impartial, efficient and
machine-like as possible, like an electronic instrument that repeats the
words verbatim, using the same tone, the same hesitations and similar
emotions.
Court interpreters should not summarize, paraphrase or explain. Every
word spoken by the interpreter should be a verbatim interpretation of
the words spoken in the original language, keeping an accurate record -
just like a court reporter.
How to use an interpreter in court
"...to be treated at trial as a comprehending individual rather
than as an insensate object."17
The rules to communicate with non-English-speaking persons do not
differ significantly from those used to communicate with a deaf
person.18
Once the interpreter is in place during the court proceeding, the
judge or an attorney should speak to the non-English speaker, not to the
interpreter. The analogy between the court interpreter and the court
reporter continues; there are very few situations when the speech is
directed to the reporter or to the interpreter. If the
non-English-speaker has a question regarding the proceedings, the
question should be directed to the appropriate person in the courtroom.
By the number and the type of questions asked, the court will better
ascertain whether the non-English speaker fully understands the
proceedings.
It is important to remember that the communications between clients
and interpreters are privileged only when the attorney and the client
are involved in an attorney-client confidential communication and the
interpreter is present to facilitate such communication. Conversations
that occur between the interpreter and the client outside the attorney
presence may not qualify for the privilege. Under some scenarios, the
interpreter conceivably could be called to testify just as any other
witness in the case.
|
Francisco Araiza, Creighton 1992, is an assistant state public
defender in Milwaukee and a member of the Wisconsin Hispanic Lawyers
Association. He studied English as a second language while attending
Brigham Young University in Provo, Utah. The views expressed here are
his own.
|
Conclusion
As the country continues its centuries-old debate over immigration
policy and "English only" laws, the right to have qualified interpreters
in our courts has been decided mainly under arguments about due process
and fundamental issues of fairness.
Today, courts should ensure interpreters' competency and impartiality
with the same care used to obtain qualified court reporters. After all,
what is the value of a court reporter's verbatim transcript, if it
contains an unqualified interpreter's false account of the words of the
non-English-speaking person?
Courts are required to provide a full opportunity for
non-English-speaking defendants to present their cases with the same
clarity as their English-speaking counterparts. Ideally,
non-English-speaking defendants should be able to hear the testimony,
consult with their attorneys - and thereby cross-examine - with the same
speed and effectiveness as if they understood the proceedings in
English. The First Circuit Court of Appeals summarized the overall
policy consideration regarding court interpreters when it stated, "No
defendant should face the Kafkaesque specter of an incomprehensible
ritual which may terminate in punishment." 19
Endnotes
1 5 John W. Wigmore,
Evidence, 1393, at 143 (Chadbourn Ref. ed. 1974).
2 State v. Santiago, 206
Wis. 2d 3, 556 N.W.2d 687 (1996).
3 United States ex rel. Negron
v. New York, 434 F.2d 386, 390 (2nd Cir. 1970).
4 State v. Neave, 117 Wis.
2d 359, 344 N.W.2d 181 (1984), overruled on other grounds by State
v. Koch, 175 Wis. 2d 684, 693-94, 499 N.W.2d 152, cert.
denied, 510 U.S. 880 (1993).
5 Wis. Stat. §885.37
(1995-96). Practitioners appearing in federal court should refer to The
Court Interpreters Act of 1978, 28 U.S.C. 1827.
6 Negron, at 389 (quoting
Dusky v. United States, 362 U.S. 402 (1962)).
7 United States v. Quesada
Mosquera, 816 F. Supp. 168 (E.D.N.Y. 1993).
8 United States v.
Carrion, 488 F.2d 12, 14 (1st Cir. 1973); cert. denied,
416 U.S. 907 (1974).
9 Perovich v. United
States, 205 U.S. 86 (1907).
10 Neave, at 373.
11 Wis. Stat. §967.09.
Interpretation by telephone or live audiovisual means permitted in any
criminal proceeding other than trial.
12 The charge is between $4.15
and $7.25 a minute. The billing usually is done through credit cards,
but it also can be done by opening an account in advance of the court
date when the interpreter is needed.
13 Negron, at 391.
14 Santiago, note 2.
15 Miranda v. Arizona,
384 U.S. 436 (1966).
16 California v.
Prysock, 453 U.S. 355, 359-60 (1981).
17 Neave, at 373.
18 The article, Communicating
with Your Deaf Client, by John V. McCoy, 65 Wis. Law. at 16 (Nov.
1992), gives an excellent overview on using an interpreter, interpreter
confidentiality and locating an interpreter for hearing impaired
persons. One difference to consider is that the Americans with
Disabilities Act does not cover language impairment while it does cover
speech and hearing impairments.
19 Carrion, at 14.
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