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Vol. 74, No. 2, February 2001
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Overcoming the Language Barrier in Court
As the diversity of
Wisconsin's population grows, so does the need for a corps of qualified
interpreters to serve the state's courts. Qualified interpreters can help
preserve the courts' accountability and integrity of their records and,
ultimately, save court time and resources.
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."
"The better the interpreter is, 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."
– Judge Elsa
Lamelas, Chair, Committee to Improve Interpreting and Translation
in the Wisconsin Courts
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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."
Dianne
Molvig operates Access Information Service, a Madison research, writing,
and editing service. She is a frequent contributor to area publications.
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