When the court interpreter asks for a sidebar.

February 11, 2014 § 42 Comments

Dear colleagues:

There are times when the court interpreter is already working in the courtroom and he comes across certain information, notices something in the courtroom, or faces a situation that makes his job unnecessarily difficult.  Usually the recourse is to let the judge know. This is an effective way to solve most problems and continue providing interpretation services during the judicial hearing.  Unfortunately, depending on the issue at stake, this is more difficult when working in the presence of a jury.

All court interpreters should know that, to avoid a mistrial, certain things cannot be said in front of an already impaneled jury.  What is left for the interpreter to do under these circumstances?  The same thing attorneys do: Ask for a sidebar.  Now I would like to share a story that happened to me several years ago while I was interpreting during a criminal trial in the United States.

A colleague and I were interpreting for a defendant charged with a crime that involved some horrible physical injuries.  It took the first two days of the trial to pick a jury, and it took the prosecution another three days to present their case to the jury.  The first defense witness took the stand on the sixth day.  It just happened that this witness did not speak English so we had to interpret for both: defendant and witness. We did a consecutive rendition of the testimony and we positioned ourselves next and right behind the witness stand.  We interpreted over the courtroom sound system so the defendant heard all the questions and answers in Spanish.  Direct examination by the defense began that morning. Nothing out of the ordinary to this point except for the fact that the prosecuting attorney spoke Spanish.

It was my turn to interpret so I started the afternoon session. After the first standard questions about the witness’ name and occupation, the defense attorney asked him questions about the facts of the case.  The witness started answering in Spanish and his testimony disputed what up until then the prosecution had advanced as their theory of the case.  It was clear to all Spanish speakers in that courtroom that this testimony was not favorable to the prosecution. As the witness was speaking, the prosecutor stood up and objected to the witness’ answer stating that the testimony was hearsay.  The judge sustained the objection.  It bothered me that this English speaking judge had granted the prosecutor’s objection even before I interpreted the witness’ answer into English. The defense attorney said nothing. Two or three questions later the same thing happened again.  At this time I was very concerned about the direction this was heading to, so when the prosecutor objected for the third time I got up, raised my hand and asked for a sidebar.  The judge and attorneys were a little confused but after hesitating for a fraction of a second the judge asked us to approach. While walking towards the bench I turned to the witness stand and signaled the other interpreter (who was then sitting behind me as she was the supporting interpreter at that time) to join us for the sidebar.

As soon as we were all in front of the judge I voiced my concern. I told the judge that I believed that in order to sustain or deny an objection there has to be something on the record for the objecting party to object to a statement by a witness, and that sustaining or denying an objection without having heard the objectionable statement probably was not the best way to act.  The judge asked me to clarify so I basically told her that my rendition into English reported on the record by the court reporter is the actual testimony, that an attorney who objects to an answer given by a witness in a foreign language is not objectionable unless it is first interpreted into English. Before this happens the answer given in Spanish is not part of the record and therefore, there is nothing to object. My second argument was that the counterpart, the defense in this case, had no way to argue against the objection because he does not speak Spanish and does not know what the witness said.  Finally, I told the judge that in my humble opinion, as a non-Spanish speaker, she would also need to wait for the interpretation of the answer given in Spanish before she could decide what to do with the objection.  There was silence after I spoke. A few moments later the judge said: “He is absolutely right. We have to wait for the interpretation.” We had no more problems with that or any other Spanish speaking witness for the rest of the trial.

About two weeks later I was contacted by the head prosecutor in that judicial district who invited me to give a talk to all of this prosecutors about this issue.  Dear colleagues, do not lose sight of the fact that as interpreters we are officers of the court, and as such, we must use all the tools that the system gives us in order to do our part to preserve the integrity of the judicial process.  During my career I have asked for a side bar in countless occasions when I have faced a situation similar to the one I mentioned above.  Now I invite you to tell us your sidebar experiences and to share with us some of the difficulties you have faced while on the job and how you have solved them.

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§ 42 Responses to When the court interpreter asks for a sidebar.

  • One situation that comes to mind was when a victim was asked what he heard from the perpetrator of an assault/attempted murder. After the victim was hit over the head with the butt of a gun and fell from a bed to the floor he hear, “lo matamos”. If I am not mistaken he said he stayed on the floor very still after being struck.

    The situation I found myself in was that those 2 words could very easily mean, “we killed him” or “do we kill him?” or even “did we kill him?”

    I felt it was my obligation to ask for a sidebar to inform the court and counsel that I couldn’t give an exact interpretation as the words were somewhat ambiguous, and that even the inflection changed every time the witness recalled the words such that it wasn’t clear to me what he really meant. I don’t know if the witness even really knew what he meant, although he could speak to his feelings or reaction upon hearing that statement. In an attempted murder case the difference between “did we kill him” and “do we kill him?” is enormous. Once the jury was made aware of the possible interpretations for that statement, they could decide what they thought it meant after hearing all of the evidence.

  • legalspanish says:

    I´ve had objections made to answers before I could interpret them but the judge addressed the problem quickly (and there was no jury).

    If I were in the situation described in this post I would try to formulate my explanation in terms of my duty as an officer of the court to render all of what the witness says, rather than making arguments of law/procedure to the judge and attorneys (¨that in order to sustain or deny an objection there has to be something on the record for the objecting party to object to a statement by a witness, and that sustaining or denying an objection without having heard the objectionable statement probably was not the best way to act…. the defense in this case, had no way to argue against the objection because he does not speak Spanish and does not know what the witness said¨). Now I know Mr. Rosado is a licensed attorney and I don´t know the history/trust he had with that judge but for those of us who are not attorneys things can get very dicey if we start making legal arguments to a judge and attorneys. If it were me, I would say ¨The interpreter has a responsibility to preserve the integrity of the record by rendering everything that is said by the witness, which cannot be done if questions are objected to before they can be interpreted into English¨

  • […] Dear colleagues: There are times when the court interpreter is already working in the courtroom and he comes across certain information, notices something in the courtroom, or faces a situation tha…  […]

  • Amy says:

    Thank you for continuing to post thought-provoking scenarios.

  • Rosemary Dann says:

    Thanks, Tony, for reminding us that we need to take action when there are impediments to our performance – and not being allowed the opportunity to render an interpretation is certainly an impediment. But I hesitate to lecture a judge on the law and I agree with @legalspanish that it might ultimately be more helpful in our role as interpreters, to remind the Bench and Bar that we have an ethical obligation to uphold our oath to interpret completely. That would also give the defense attorney – if s/he were paying attention – the opportunity to make the legal argument. Before becoming an interpreter, i was once that attorney who spoke Spanish and objected before the interpretation had been rendered, so I understand the prosecutor’s “hair trigger” for objecting. Fortunately, the judge, who was on top of things, reminded me to wait for the English. Once was enough. Lesson learned.

  • Hartmut says:

    What if the judge is bilingual himself and hears the testimony and the interpretation. He thinks, the interpretation was inaccurate. What would his legal obligation be?

    Hartmut

    • Margaret Wolfe-Roberts says:

      That’s a good question, Hartmut. Since the attorneys generally have the opportunity to be heard on their objections to an interpretation, among other things, and the judge also can act on his or her own motions at times, I would guess it would be within the judge’s discretion to object to an interpretation, although it would probably need to be on the record, and the judge could run the risk of appearing partial if the court’s interpretation obviously favored one side over the other. Besides, the interpreter is the language expert, not the judge. The judge may have knowledge of a language but unless he or she is also trained and certified as an interpreter, perhaps it would be best to defer to the professional. At most I would think the judge would need to question the interpreter and not merely overrule her.

      I have worked a jury trial before where a juror was bilingual and my colleague and I approached the judge to ask for a jury instruction that they are to consider only the interpreter’s interpretation, in the event that their opinions differ, because the interpreter is trained and certified and the bilingual juror is not.

      The instruction was given and there were no comments on the interpreting from the juror. However during that same trial a bilingual attorney objected at one point to the interpretation and so the jury was sent out, and the witness was asked to clarify his response. On another occasion the attorney asked to be heard, the jury was sent out, the attorney objected to the interpretation and the interpreter team was questioned as to the accuracy of that interpretation. Since both interpreters concurred, the interpretation was accepted, and the jury brought back in. Then the witness, in responding to the next question, made a long correction basically contradicting the questioned interpretation to the previous question. It’s hard to know just what might have happened, whether the witness had had a slip of the tongue, whether both interpreters heard him wrong, or what. But the judge turned to the language professionals for their opinions, and not the unhappy attorney.

      At the same time it behooves us to be gracious about the potential for error. I think it’s good to talk about accuracy and inaccuracy in terms of the degree of the error and the rate of error, rather than whether it exists at all, because it is my opinion after listening to colleagues of all levels of certification and experience interpret over the years, that it’s really not a question of whether or not error exists–there are always going to be some inaccuracies.

  • Dianrez says:

    In a related question, does the witness also have a chance to ask for a sidebar if the witness feels the interpreter was inaccurately translating?

    • hartmut says:

      The witness simply can state openly this fact. It will enter the record. Either attorney will take care of the problemm. either requesting for a sidebar or voir dire the interpreter or for replacement.

      Hartmut

  • Gloria Hughes says:

    Dear Tony,
    Thank you so much for sharing your thoughts and experiences with us.
    After reading an article about how important it is to use the consecutive mode while interpreting at the witness stand for a non-English speaking witness, I was more convinced than ever to keep on using this mode “in full”, in spite of some collegues arguing that it is best to interpret the questions in simultaneous and the answers in consecutive. I was all excited and ready to go, hoping I would get to use my consecutive skills soon; I had the chance to do it two days ago, interpreting for a witness at a preliminary hearing.
    The witness was an elderly lady, the defendant was her son. I was interpreting both, questions and answers in consecutive and everything was going smoothly until, during the direct examination, the opposing counsel started objecting to the prosecution’s questions in the middle or even before I began my rendition of the question in Spanish, and the prosecution would reply and then the judge would rule on the objection and I was then, left interpreting the question, the objection, the response and the ruling on the objection, to a very confused old lady, who did not know if she was supposed to answer or not and who, by the time I finished, did not even remember the question! Right there at the witness stand, I was wondering if it would be better to just switch to simultaneous to interpret the questions and objections, ask the judge to please instruct the attorneys to please wait until I had finished interpreting the question to state their objections, or pray to God that both attorneys would understand how difficult they were making it for me to do my job well!
    I understand and agree with what you did in response to an attorney raising an objecting to an answer which has not “officially” been given. How would recommend we deal with this problem, when the objection to the question and a session of “back and forth” arguments between the attorneys take place before we even get the chance to begin interpreting the question for the witness? I would also love to hear how other fellow court interpreters handle this problem

    • hartmut says:

      Just give visual cues to the judge and attorney to wait until you are finished.

      Hartmut

    • Margaret Wolfe-Roberts says:

      Gloria, as I mention below, I feel that if the objection to the question has been sustained then there is no need to interpret that question for the witness. I do however generally interpret “Objection–sustained” and/or whatever arguments are being made, switching into simultaneous, though not always. The witness does not necessarily have the legal right to hear everything unless he or she is also the defendant.

      If the objection ends up being denied, at that point the interpreter can simply say, “Interpreter requests repetition of the question.”

      It gets trickier when there is a defendant sitting in the courtroom who does have the right to hear it all, and who cannot hear the whispered simultaneous being given up front. Working as a team, two interpreters have more opportunity to address the problem. For the lone interpreter, wireless equipment for simultaneous may be used in alternation with the consecutive mode from the stand to prevent having to run back and forth. He can lean forward and quietly interpret for both the witness and the microphone, if need be.

      Another consideration, as Judith points out below, is when certain parties may not realize for whom or what hasn’t been interpreted yet (or at all), and the confusion interferes with the smooth flow of the proceedings and/or full access by the parties. This also happens when a judge or DA may have addressed the gallery about general policies, and assumes that everyone who comes up to the bar subsequently already knows certain things. Usually I will say, “Your Honor, the interpreter would like to bring to the court’s attention that the court’s previous advisal was not interpreted for this defendant” and then the judge fixes the problem.

      • Gloria Hughes says:

        Dear Margarete,

        Thank you very much for your response. I normally do switch to simultaneous when there is an objection, but my problem was that I had barely or not even began interpreting the question when the objection was stated!

        You are right, I should just interrupt the consecutive translation of the question, interpret the objection, the exchange between the attorneys and the ruling on the objection in simultaneous and, if the objection is overruled, just ask for a repetition if I don’t remember the question in full…I guess it just seemed somehow wrong to me not to interpret the question to the witness when the objection was sustained.

      • Margaret Wolfe-Roberts says:

        Yes, I remember feeling that way too, uncomfortable with leaving something out. It involves a balancing of interests on the part of the judge. Our job is to approximate the experience of a witness who does not need an interpreter, and such witnesses do have the benefit of hearing the question being asked even if they are not allowed to answer it. On the other hand, the experience will never be identical, efficiency claims often prevail, and the judge may well decide it’s more important to keep out improper questions and answers than it is to allow the witness to hear everything.

        Keep in mind, the witness who is using an interpreter actually enjoys the opportunity to respond more fully than a witness without the interpreter would (though it may not get interpreted in its entirety), because the attorneys cannot object to something until they have heard it. In other words, all witnesses have their communication curtailed one way or another, as it’s part of the legal process.

  • Judith Kenigson Kristy says:

    First of all, to answer the question posed by Gloria — in fact, at the moment of the objection, the interpreter must switch to simul and interpret all the attorneys’ and judge’s exchanges regarding the objection to the witness (and the defendant, if that is the case)… that is – if the interpreter is privy to that dialogue! In the following, I’ll tell you about a case of mine where that was not the case (copied from my comment in another forum):

    Y’know – there are a lot of secondary effects, too. Once in Alabama, in a trial where I was interpreting, there was an objection, of course before the answer was interpreted, and during the subsequent bench conversation, (not interpreted), the judge decided to sustain the objection. The poor witness had no idea what was happening since the interpreter was not invited to the bench to interpret the discussion. During subsequent questioning by the prosecutor, the confused witness kept saying, “but I already said x,y,z… ” etc. It was quite distressing! It made him look untrustworthy. I asked for a sidebar about the situation (i.e, witness not knowing what had happened, thought his answer was already heard, understood, and on the record) and I was angrily rebuffed (“Madam interpreter I don’t want you to say ANYTHING, you understand me?”). After the day was over, jury gone, etc., I again approached the bench and requested permission to clarify. I explained the problem and suggested that, at a minimum, the witness’s attorney should have a moment to explain what had happened. The judge thought it over and realized the impact of what I was saying. He reluctantly agreed, but the damage was already done and he wasn’t about to open that can of worms publicly. In general, judges are very content to “let sleeping dogs lie” — I mean, if the answer has not been interpreted and they sustain the objection, they are quite happy about it cause then there is no need to “unring the bell”, i.e. tell the jury to disregard the answer (since they never heard it in the first place). That’s where the problem lies (at least part of it) ….

    • Margaret Wolfe-Roberts says:

      Judith, of course you are correct in asking for a sidebar if you felt it merited it, rather than making any statement in front of the jury about what you believe to be the witness’s mental state, confusion or whatever. I did that once and was quickly rebuked by the judge.

      Or then again, maybe just live with the confusion, since you did not cause it. After all, if the witness were paying attention, he could have noticed for himself that the attorneys interrupted before you had interpreted his last statement. At some point it might rather be the attorney’s job to help out a confused witness, and we just do our own jobs as cleanly and accurately as possible.

      I have not yet developed the language of asking for sidebars, myself, though I have the language for addressing issues in the moment. Otherwise usually I would just wait until a break or deal with it on my own. In front of a jury, perhaps I had better get used to saying “May the interpreter be heard?” just as the attorneys do.

    • Gloria Hughes says:

      Dear Judith,

      Thank you very much for your response.

      I normally do switch to simultaneous when there is an objection, but leaving the question partially or completely uninterpreted when the objection was sustained, just seemed wrong.

      I agree with you, there are side effects when a question, an answer or other exchanges are not interpreted to LEP witnesses.

      One important comes to mind: even when an objection is sustained, an English speaking witness is able hear the full question, the objection and the ruling on the objection and he (or she) may pick up on the “hint”, for example when the question is “leading”. However, the non-English speaking witness is not afforded this “advantage” if the question is not interpreted.

  • hartmut says:

    Less of a problem for a sign language interpreter interpreting a Deaf witness. She can stop interpreting abruptly an d uses the sign for ‘objection’ and points to the objecting party. When the judge sustains the objection, the question becomes “unrung” the Deaf witness does not need to hear the question completely.

    • Margaret Wolfe-Roberts says:

      Ah! so the sign language interpreter is able to interpret out loud simultaneously while the witness signs! That is nifty. I suppose you have no problem projecting your signed interpretation to multiple parties, either.

      • Hartmut says:

        That is where the advantage of the differing modality (visual/auditory) lies. A human person has the capability to process and render visual and auditory events simultaneously, and this only is for a short length as far as the interpreter’s memory can manage, like speaking the translation and gesturing with a single gesture to direct the counterpart how to behave at the same time.

        Even between two auditory languages, you can make it audio-visual by employing visual means.

      • hartmut says:

        Wolfe-Roberts,
        It does not happen really, how you state. Simultaneity is really an illusion, when utterances are very short, because the translations begin very quickly, thus giving the appearance of simultaneity.
        Yes, signing can be seen by multiple parties that are in the sight line to the signer. No such like whispering into the ear of the defendant or witness. The signs from the interpreter and from the witness can be seen by viewes in the gallery.

      • Margaret Wolfe-Roberts says:

        Hartmut, I am using “simultaneously” in the sense that we use it professionally, to refer to the simultaneous mode of interpretation.

      • Hartmut says:

        Wolfe-Roberts,
        it is difficult for me to fathom, that one is in the simultaneous mode, when interpreting a short question or answer. You have the whole message in your head before you start to interpret.

        If the utterance is lengthy, containing several sentences, some of which complex with two or more clauses, the interpretation is to be done in the consecutive mode as a rule in legal settings. So it appears that everything is done in the consecutive mode in legal settings.

        Hartmut

      • Margaret Wolfe-Roberts says:

        “That is where the advantage of the differing modality (visual/auditory) lies. A human person has the capability to process and render visual and auditory events simultaneously, and this only is for a short length as far as the interpreter’s memory can manage….” –hartmut

  • Most of last week and this one, I was interpreting at an international arbitration. Many times I had to interrupt proceedings to remind the parties – including the Tribunal – that they had to wait until I finished relaying their exchanges to the witness.

    This was a much less stressful situation than a courtroom and I felt comfortable doing it. Only once did the Tribunal state that my interpretation was not necessary: the session had been closed and the party’s lawyers were charged with providing the information to their client (logistics of their next meeting).

    Thank you for the lesson, Tony.

  • Margaret Wolfe-Roberts says:

    It seems an interruption only really becomes a problem when it comes after a non-majority-language statement has been made but before it can be interpreted, or if someone has the ill manners to begin speaking while the LEP is still responding to a question. In that case the interpreter has two competing tasks to perform at the same time.

    Sometimes I have had attorneys object before hearing the interpreted answer just due to the length of the response. They may complain to the judge that it is too lengthy of an answer for the question, or request that the witness be instructed to respond more specifically, only guessing at what the response actually was. In that case, if the judge agrees then the original answer gets lost.

    For objections to questions while the interpreter is at the witness stand, I generally feel that if the objection was sustained, the question was nixed by the judge and does not have to be interpreted to the witness. I might just interpret “Objection—hearsay.” If the objection was denied, then I would interpret “Objection—denied” and then the question, or if I haven’t retained the question, then “Interpreter requests repetition of the question.”

    On the other hand, sometimes there is greater discussion of the objection. Generally the jury if there is one will be sent out of the room for anything lengthy. Additionally, if there are additional LEP parties they will not hear the interpretation of the interruption since at that point the interpreter is interpreting softly for the witness only.

    I have worked with a colleague using equipment where one of us was up front interpreting for the witness, keeping her voice up for both questions and answers, and the other stayed back and to the side waiting to jump in using the wireless only for objections and discussions. This was in a cross warrant case with multiple LEP defendants, plaintiff and witnesses, most using a headset, but no jury or court reporter. Meanwhile the active interpreter also interpreted, softly in simultaneous, the same discussion for the witness on the stand. It worked pretty well although the tendency was for people to remove the headset while listening to the witness, and so they would not be ready for the interpreted discussions when they came. At least the interpretation was being provided.

    However, with a jury and court reporter close by it gets trickier. I have worked a jury trial where my colleague and I were both standing up at the witness box, one right behind the other, to provide backup and quick corrections/input for each other. In this case, when discussions arose during interpreted testimony, they were not getting interpreted for either the witness or the defendant who were both LEP, which bothered me a lot. My colleague was the staff interpreter while I am a contractor, and she told me the court reporter who sits right by the witness stand complained about noise when she tried to interpret the discussions that arose during witness testimony. So the staff interpreter concluded “One person only speaks at a time” and therefore I followed her lead, to not interpret these longer discussions at all.

    It seems that when the interpreter team is using the doubled-up approach at the witness stand, we could keep the wireless equipment on hand, and one of us steps back away from the reporter and towards the back wall, in order to quickly switch to simultaneous for the defendant, but I don’t know how the witness is going to know what was said. Technically the witness does not have a legal right to understand the whole proceedings the way the defendant does, but as Judith has pointed out, the lack of understanding of the ensuing discussion might impact the interaction between attorneys and witness going forward. This problem has come up before. I think our colleague was absolutely right to attempt to bring this issue to the judge’s attention, and to renew her suggestion after the trial was over, as an opportunity to educate the client at the very least.

    The defendant does have a right to hear it all, even if the court reporter complains about noise. Perhaps I would bring up a suggestion that the interpreter team at the stand keep the equipment nearby and the resting interpreter walk quickly away from the court reporter (across the front of the jury box) in the event that it becomes necessary to interpret simultaneously during interpreted witness testimony. Then ideally the witness is also given a quick summary by the judge. Probably the judge should be alerted to such a situation with the court reporter and the need to switch to simultaneous without disturbing the reporter, so we can problem-solve it together.

    I have a related question for which I’d like some feedback: When a bilingual witness giving testimony in English quotes someone in the interpreter’s other language, and then is asked by the attorney what it means, and the English interpretation the witness gives is a simplification of what was said in the other language, does the court interpreter have any obligation to mention the simplification? In the case I have in mind, there was a bilingual detective sitting behind the prosecutor who was questioning the witness, and I would think he would have said something to her about it, as it seems to me that hearing the full interpretation of the original Spanish would have strengthened the prosecutor’s case. Still, regardless of the presence of others, should the interpreter say something even if she is not specifically asked to comment, and if so, how and at what point? Meanwhile the simultaneous is still going on. At the very least I would think the court reporter should be told the full interpretation of the Spanish in order to spell the original statement in the transcript. If the interpreter doesn’t mention it to the judge or attorneys, wouldn’t that be kind of strange, then, that the reporter would be the only other court official to know exactly what was actually said in the other language?

  • This happens rather often. It makes me uncomfortable when the objection is sustained and the witness is left under the impression that everybody heard what he said when, in fact, they didn’t. I tend to quickly ask the judge, “Does the court want the interpreter to finish rendering the interpretation of the witness’ last response?”. That way I’m setting on the record that there was more said by the witness, in case I’m not allowed to finish interpreting his response. And I, obviously, interpret to the witness and defendant my question to the judge. This way I’m making them both aware of the fact that no, people did not hear the entire response.

  • Irene Caramuta says:

    What concerns me about the scenario above is that it would seem that various portions of the Spanish speaking witness’s testimony went uninterpreted. Rather than asking for a side bar, I suggest nipping the situation in the bud, the very first time it happens, with a clear but very polite “I’m sorry, Your Honor, but the interpreter was not able to put the English on the record.” This has always done the trick for me and for many of my colleaugues, all of us creatures of the courtrooms, who employ it.

    Regards,

    Irene Caramuta

    • Margaret Wolfe-Roberts says:

      I like this solution, Irene, it’s very succinct, proper, and does the job. In my experience sometimes the judge may tell you not to interpret it anyway, which may make sense because if some part of the response is not allowed, for instance, because it’s hearsay, then there is no reason to allow someone to interpret it for the jury just so the judge can say “Disregard that answer.” In some ways, adding the extra layer with the interpretation allows witnesses to say more than they normally would, because the attorneys cannot object until they actually understand what is being said. The closest approximation to witnesses testifying without an interpreter would be if the interpreter is allowed to interpret the answer only up that moment when “Objection!” is heard.

  • Bismillah Haiyy says:

    It was the defense attorney’s responsibility — or possibly the judge’s — to do what Tony did.

    It was wholly inappropriate for Tony to step out of his role as interpreter and insert himself into the legal proceedings, making legal arguments in the way he did.

    The U.S. legal system is adversarial by design. Sadly, it’s not about “fairness”. It’s often about who the better attorney is. They are opponents battling in a ring, and there are rules governing that battle.

    If you have an excellent prosecutor and a lousy defense attorney, you lose. Or vice versa. That’s how it works.

    If the lawyers aren’t doing their job, that sucks. But we can’t do it for them.

  • Consider this situation: In a contested divorce petitioner wife is represented by an attorney in court. The respondent is proceeding pro-se by telephone through an interpreter in court. Petitioner’s attorney starts by calling the respondent as an adverse witness on behalf of petitioner and also calls petitioner to the stand. The judge asks questions of both parties during the petitioner’s attorney presentation of the case allowing the respondent pro-se to cross-examine, The judge however forgets to allow the respondent to present his case in chief and proceeds to enter judgment against the respondent and in favor of the petitioner in the issue of paying the health and dental insurance premiums. No one in the court notices the appealable error except for the interpreter who happens to be a 70 year old retired attorney. Whose responsibility is it to point out the error where there is no attorney for the respondent pro-se? Is the interpreter an officer of the court obliged or not to point out the error? Or should he just remain silent? Thank you.

  • Dianrez says:

    Concepcion, that question deserves a thread all its own.

    I have seen many, many situations where the Deaf person is overlooked in some kind of representation. For example, when the police come to a home or an accident site, the hearing side will have full input, often overwhelming. The officer forgets to get input from the Deaf side, or gets a minimal introduction and forgets to get the response to the hearing side. The decision goes to the hearing side for several reasons: more input, more experience assessing the situation and configuring responses accordingly, cultural bias, and more familiarity with the situation. The Deaf person frequently lacks information about the situation, lacks knowledge of Hearing custom, and has no idea what is being said.

    Definitely the interpreter, if one is available onsite, should say something. The Deaf person’s rights depend on it, otherwise the interpreter is taking the hearing side and perpetuating the inequality.

  • ydroustan says:

    Dianrez, I agree! The interpreter should say something otherwise he is allowing the inequality to continue. In the case of the judge failing to hear the side of the respondent in the contested divorce case, the interpreter would have to insert himself into the legal proceedings and make legal arguments; in effect acting like an attorney, correcting the judge, educating the respondent and taking an adversarial position against the petitioner and the petitioner’s attorney. No doubt Bismillah Haiyy would argue that If the lawyers and the judge aren’t doing their job, that sucks, because the adversarial system is more important than the individual and we, the interpreters can’t do it for them. I beg to disagree. This happens all the time in countries not employing the adversarial system such as in Russia, Cuba and China where the “system” is more important than the individual but it shouldn’t happen in our adversarial system when it comes to a miscarriage of justice. The interpreter is not just a machine but an officer of the court and if he/she sees an injustice he/she should say something, especially if no one in the court room does anything about it. What do other interpreter’s think about this? I would like to hear other opinions.

    • Margaret Wolfe-Roberts says:

      I am very interested in this term “officer of the court” since I’ve recently heard doubt from an elected Clerk of Court who apparently felt strongly that the interpreter is NOT an officer of the court, but other times the judge has referred to the interpreter that way. Does it just depend on the perceptions of the people working around you, or your hiring status, or does the designation have some other formal basis?

  • Margaret Wolfe-Roberts says:

    The question of whether and when to speak up if the person we’re interpreting for is being shortchanged in some way, is a sticky wicket because of the mandate that the interpreter remain impartial and not attempt to practice law without a law license. I would tentatively say that if the situation would seem to be directly related to the person’s status as someone requiring interpretation, we might nevertheless have reasonable grounds as professionals for speaking up. After all, our primary purpose as legal interpreters is to provide equal access to the justice system for those who do not speak the majority language.

    The challenge would be to phrase our request in such a way as to reflect our professional interests, as opposed to any personal interests or adversarial position.

    • ydroustan says:

      By definition an officer of the Court is: n. ANY person who has an obligation to promote justice and effective operation of the judicial system, including judges, the attorneys who appear in court, bailiffs, clerks, and OTHER personnel. As officers of the court lawyers have an absolute ethical duty to tell judges the truth, including avoiding dishonesty or evasion about reasons the attorney or his/her client is not appearing, the location of documents and other matters related to conduct of the courts.

      When I became certified interpreter I was required to take a course on the ethical obligations of the interpreter and to notify the Court or the appropriate authorities of any unethical or erroneous conduct in the case. The only question was NOT whether to do it or not to do it but HOW to do it and WHEN. If you wait until after the deed is done everybody will thank you with the comment: “too bad it is too late for this victim, we will try to avoid it in the future” The only question insofar as I am concerned is WHEN. Either do it when it occurred, right at the trial and STOP it from hurting the victim, or do it later because it satisfies and protects your ego and the collective system. Of course, if you are not sure, then you need to educate yourself to act properly in the courtroom in the future. I strongly recommend taking a good course in professional ethics and reach your own conclusions. As for myself, I know exactly what I will do when I see an injustice and will worry afterwards about whether protecting the innocent and weak was right and proper. But again, that is just me!

      • Bismillah Haiyy says:

        Court interpreters are not advocates. Period.

        It concerns me greatly that some of you do not understand that very basic point.

      • ydroustan says:

        An interpreter is an interpreter who is also an officer of the court. period. It concerns me that some of you do not understand that very basic point

      • Margaret Wolfe-Roberts says:

        ydroustan, could you help me understand what you mean by the duty to notify the Court or other authorities of “any unethical or erroneous conduct in the case”? What are some examples of things you think an interpreter would have a duty to report?

      • ydroustan says:

        Any interpreter, when functioning as an interpreter in a court of law, has the same duties as an officer of the court such as the judge, the clerk of court, the court stenographer, the bailiff, the district attorney, the defense attorney, the public defender, a representative of the department of family services, the guardian ad litem, the court observer, and the private attorney, and any other person acting in any function in furtherance of the court proceedings. As such any act that is unethical ought to be reported or prevented if possible. If an interpreter sees an attorney bribing a juror he needs to report it. If an interpreter is in chambers and hears the judge being bribed he need to report it. If an interpreter is interpreting in a private hearing with the prosecution or the defense attorney and hears them advise the defendant or the witness to lie he/she has to report it. If an interpreter sees a miscarriage of justice being committed during a trial he needs to do something about it and as a minimum report it, and if he/she can do something during the trial, in front of the judge or the jury he/she has to do something about it, just as the court stenographer, and the bailiff and even an spectator has to do also do. This duty does not depend on whether the interpreter is a private contractor or a full time employee of the County. It depends, solely, on the function of the interpreter at the time in court. Outside the courtroom, the interpreter is not an officer of the court. However, if he or she is a moral person, he or she ought to know the difference between what is right or wrong. I believe you have suggested before in the example of the deaf person what your choice would be, and I commend you for that. I would do exactly the same as you suggested. Regards. Yvon D. Roustan

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You are currently reading When the court interpreter asks for a sidebar. at The Professional Interpreter.

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