Are court interpreters at risk of committing a crime?
March 5, 2013 § 12 Comments
Some of you may have noticed that for about a couple of years there has been a tendency to redefine the court interpreter profession. Some are now saying that we should not even call ourselves court interpreters; that we should instead refer to those who interpret in court as “cultural brokers,” “language specialists,” “language facilitators,” and many other similar titles. The basic idea behind this new movement is that many times court interpreters interpret correctly and accurately what has being said in court, but the person they are interpreting for, usually a defendant, victim, or witness, does not understand what happened during the court proceeding. Some claim that because of cultural differences, lack of formal education, economic factors, and others, these people who do not speak English need more than just interpretation. They need explanations, descriptions, maybe even a lower registry in order to understand what is happening in court.
It has been suggested that court interpretation rules and practices are outdated and therefore ineffective; it has been said that these ethical and professional considerations and expectations cripple the process as they contribute to increase the barrier of misunderstanding instead of eliminating it. The proposal is to approach judges and attorneys and inform them that court interpreters need to change their ethical and professional rules, and that as language professionals, they need to be the ones amending them, not other professionals who are not entirely familiar with the interpreter profession.
It has been suggested that nothing changes in a case when the interpreter tells the defendant that his charges have been “dropped” even though the judge said that they had been “dismissed.” That this allows the defendant to understand better.
I agree that our job is to make sure that two people who do not speak the same language can communicate. I agree that the law is technical, complicated, and full of big words and obscure terms. I am aware of the speed at which hearings are conducted in most courthouses, and I do not dispute that it is very difficult to follow a proceeding that took 90 seconds. The problem is that I am also aware of a crime named: “Unauthorized Practice of the Law.”
Black’s Law Dictionary defines it as “The practice of law by a person, typically a non-lawyer, who has not been licensed or admitted to practice law in a given jurisdiction.” (Black’s Law Dictionary. 7th. Ed. St. Paul, MN: West. Pp 1191-1192) Even licensed attorneys are barred from practicing in jurisdictions (states) where they have not passed the bar exam and being sworn in as attorneys according to Rule 5.5 of the Multijurisdictional Practice of Law Rules of the American Bar Association (ABA) Moreover, unlawful practice of the law is illegal in the federal and state judicial systems, and it constitutes a crime. Some states treat it as a misdemeanor like Arizona and New Mexico, and in some states a behavior of falsely claiming to be a lawyer is a felony (TX Penal Code Ch. 38 Section 38.122 & 38.123) Misdemeanors can carry up to one year in jail, and felonies can land a person in prison for even longer.
Asking an interpreter to interpret accurately and completely is appropriate and expected. Asking an interpreter to “edit” and decide what to say and how to say it, even with an amended set of rules of ethics and professionalism, creates a situation where that interpreter has to navigate the very treacherous waters of the law, and act as a cultural and linguistic broker without breaking the law, and with the constant possibility of being deprived of his or her freedom. In my opinion the risk is too high and many interpreters are not prepared or willing to make a distinction between those illegal activities that constitute unlawful practice of law, and those others that would help the defendant, victim, or witness understand what just happed in a court hearing.
The solution has to be somewhere in the middle: A good and honest interpreter must be aware of the cultural differences between client and attorney, parties and judge. If the interpreter determines that there is a problem in the communication, he or she must tell the English speaker attorney that his client may be having difficulties understanding some of the concepts that were debated, the interpreter must help the attorney by explaining the possibility of a cultural, economic, emotional wall between her and her client. That ends the interpreter’s obligation. Now it is up to the attorney (or judge) who needs to explain and maybe rephrase some of what has been mentioned to her client: the defendant. It is the attorney who should be giving legal advice, not the interpreter. The attorney needs to determine what is said and explained to the client. The interpreter must interpret all explanations the attorney gives to her client. In other words, there is nothing wrong in telling the attorney that his client is not understanding what is being said in court. This way the interpreter stays within his field, and the attorney practices law. Please share with us your thoughts on this new trend, and tell us your opinion on what needs to be done.
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