Are court interpreters at risk of committing a crime?

March 5, 2013 § 9 Comments

Dear colleagues:

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It has been suggested that court interpretation rules and practices are outdated and therefore ineffective; it has been said that these ethical and professional considerations and expectations cripple the process as they contribute to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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§ 9 Responses to Are court interpreters at risk of committing a crime?

  • Jaime D. Sotomayor says:

    I have had defendants who don’t understand the “language” used in Court, and I have had judges ask me to “explain” what is happening or is being said. My answer has always been the same; “With all due respect, Your Honor, if this defendant understood English, he would quite probably still have problems understanding the Court’s language. It is more a matter of vocabulary than of language.” When such problems have arisen, I have asked the Court or the attorney to lower the register, but I never taken it upon myself to do it on my own. I believe that would be overstepping my bounds.

  • Catalina Bajpai says:

    We must remember that a defendant using an interpreter should have the same exposure to what is happening in court as one who speaks English. Interpreters translate what is being said in court. The attorneys and the Judge do the explaining. The defendant, if he does not understand something, should ask. The interpreter should tell him to do so, at the beginning of the session.

  • Eric Valdez says:

    As a Court Interpreter for many years, I have seen that the more experienced attorneys take the time to explain to their clients what the proceedings are about or were about, and they do so in a register they can understand.
    Unfortunately, I have also seen overworked and frazzled attorneys neglect to do this.
    I agree that it ‘s not within an interpreter’s purview to “dumb-down” his/her interpretation.
    One should simply follow the existing professional/ethical guidelines and most linguistic obstacles that arise will be cleared.
    As an aside:
    Among our duties as Court Interpreters, is the duty to inform counsel or the Court of any linguistic problems we may perceive. For example; You are interpreting for someone in a lock-up interview. You notice that when the client speaks, his Spanish is “off” meaning he mixes tenses or uses the wrong gender for pronouns or nouns. At that point our ethics call for informing counsel that their client might not speak Spanish as a first language. Next his native tongue must be determined, and an interpreter in that language must be brought in.

  • Ignacio Villarreal says:

    I wholeheartedly agree with Catalina, and Jaime.
    I have been an interpreter for over 25 years and never have I taken it upon myself to explain, or clarify any doubts a defendant or witness may have.
    Should a witness say “No le entendi la pregunta”, or “Pero que quiere decir eso?”, our duty as interpreters is to express exactly what has been stated and let the attorneys or judge take over as they wish.

    When I interpret for a witness, I always request permission from defense attorney or district attorney to have a few words with said person -preferably with the attorneys present to avoid misunderstandings, or the appearance of impropriety-, and usually a couple of minutes suffice to explain to that person how we will work on the stand, stating among other things to please not address me directly, for I will not be able to respond to him or her -not because I’m being rude- but because we’re not allowed to do it.
    Also, by telling them, should you not understand a word or a question, please just say so and I will interpret that so the attorneys may ask it in a different way, or clarify it for you.
    Simple instructions like this, allow the witness or the defendant to understand how the proceeding will work.
    If after that, they decide not to do it and answer without understanding, it becomes quite clear real fast and at that point is up to counsel asking the questions how to go about it. His/her job; not mine.

  • Heidi C. says:

    I agree with the previous colleagues who have posted here, and I do not want to be repetitive. It is clear that professional qualified legal interpreting is something different to being a mediator or broker or facilitator. And, definitely, the end result when working with a broker or facilitator will be completely different than when using a qualified interpreter.
    The main issue that concerns me here is the new definitions or denominations used for interpreting Tony mentions here: being called mediators, facilitators, brokers, etc.
    It seems to me that lately the trend has been to “water down” what interpreting is.
    I agree, there are not too many certified interpreters, be it for court, medical use, or for conferences.
    I agree, there is an increasing need for interpreting services, which cannot be satisfied by the currently available qualified professionals. I am aware of the reality that sometimes the client has to do with whatever or whoever is available.
    BUT, the fact that there are other “types” of interpreting out there does not mean that the professional qualifications and standards should disappear or be considered to be inconvenient, or an obstacle, or obsolete or unreachable, or called impractical.
    Professional qualified interpreters know what they are doing, and the guidelines and standards exist for a reason. Following the professional guidelines really makes a difference. Being qualified, really makes a difference.
    Solving the current challenges found in our industry, as brought about lately in different forums, should focus on improving the situation of interpreting and interpreters.
    The idea should be to try to train and qualify more interpreters, not to lower the standards.
    So, while it might be convenient to have different “categories” in interpreting, such as cultural brokers or intermediaries, etc., everyone should be aiming to become certified and prepared to reach a standard that has been around for quite a time.
    Instead of tying to forget that standards exist -for which qualified professionals are earning accordingly-, trying to reinvent the wheel by redefining interpreting, and complaining about the low fees paid to these new interpreters, we should be trying to train more people, and maintain the expectations of high quality and standards.
    If it is necessary in the meantime to create different names for different types of interpreting, it must be clear that these different names are defining different types of interpreting that cannot replace the already existing professional standards and certifications.

    • Ignacio Villarreal says:

      Beautifully stated, and I am entirely in agreement with you Heidi.
      Standards should not be lowered any more than they already have.
      Not testing interpreters in Spanish anymore in California seems preposterous to me, but someone perhaps thought that it was a waste of resources or something similar; I don’t think so!!!!
      I have experienced first hand the difference in performance between an interpreter who’s got a well rounded command of both languages vs someone who doesn’t.
      By doing this, all I see as a result is the fact that the Spanish speaker IS NOT on the same footing as an English speaking person (as it should be according to the Evidence and Government Codes to begin with.
      Whether they understand or not what’s being said to them, that’s another scoop.
      Be it as it may, I trust that The Consortium will re-evaluate its position and back track on this issue fairly soon.

  • I agree with most of the above commentaries and would not pretend to expand on them. I have been a certified court interpreter in the State of Washington since 1991 but there does not seem to be a lack of available interpreters here. Or could it be that service providers often do not care to specify their need for a “certified” interpreter and don’t know the difference until they encounter an obvious problem?

  • Bora says:

    On occasions, I have intentionally ‘simplified’ my native language (in one specific dialect, no less, not in the standard form of my language) in order to interpret for basically illiterate witnesses testifying on war crimes and genocide cases. The judges were from all over the world and spoke English in court, and I did simultaneous and consecutive interpretation. The psychological effect of testifying in public was already heavy enough on war crimes survivors, so I didn’t think it was the place or time for ‘language lessons’. The reduced-quality native language I spoke made communication easier, while retaining accuracy of content, and was very well-received by the witnesses and audiences, who understood it better, and who even appreciated the fact that the interpreter was adjusting to their needs.
    On other occasions, I have literally had to over-simplify my English, because the abovementioned international judges were not native speakers of English…

  • […] Dear colleagues: 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 c…  […]

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