State court interpreter certifications could turn meaningless.

October 16, 2014 § 17 Comments

Dear Colleagues:

A couple of weeks ago I received an email that concerns me enormously. I am sure that many of you who are based in the United States have received similar emails from state-level judicial agencies. In my case, I got an electronic communication from the Administrative Office of the Courts of one of the fifty states in the U.S. (not the federal government) this was one of those global emails that are sent out to everybody on a master list. Basically, the message was that the National Center for State Courts in the United States (NCSC), apparently in coordination with (at least) some states, is planning to offer remote telephonic interpreting across state lines, and for that purpose, the states (and I assume the NCSC as well) are compiling lists of state-level certified court interpreters who may want to be part of the interpreter pool that will be used to interpret court hearings from a different state. Although I hope the message’s meaning was different, this is what I understood. The email is written in such a way that, to the reader, this idea looks good and beneficial for everyone: the interpreters, because they will have more work (although I would guess that the fees offered by the state governments will not be anything to brag about) the states with underserved populations due to the lack of interpreters, because they will get somebody who has been certified somewhere by a state-level judiciary, and the foreign language speaker, as they will have the services of a professional interpreter instead of a family member or a paraprofessional.

Does it sound good to you? Well, if I understood the email as a communication asking permission to include interpreters’ names on a master list to indiscriminately interpret by phone, regardless of the state, it did not sound even half decent to me. Let me explain:

It is true that state-level certified interpreters are better equipped than paraprofessionals, and therefore the service provided should be of better quality. It is true that all state-level certified interpreters have attended a basic orientation and they have passed a court certification test (now administered by the NCSC or CLAC) and in many cases they have also taken an ethics and professional responsibility test. This obviously puts them ahead of those unscrupulous people that are roaming through the hallways of many courthouses in the United States. Unfortunately, and this is the real and very big problem: these interpreters, who have been certified by one of the fifty states, would now interpret cases from other states where both substantive and adjective law are different. That is the problem. The interpreter will interpret legal proceedings based on legislation that he does not know. Unlike U.S. federally certified court interpreters who work nationwide because they interpret the same federal legislation all across the country, these state-level individuals will have to deal with fifty, sometimes very different, legal systems.

Just like the age to get married and gun control laws vary from state to state, the catalog of crimes and civil law contracts are different. Think of one single situation: battery and assault; or is it assault and menacing? Well, the answer is: it depends on the state, and the differences are radical. Penalties and procedures also change depending on the state. This is why attorneys can only practice in those jurisdictions where they have passed the Bar Exam. It is a very delicate matter.

If this is indeed what the NCSC and the states want to do (and I hope I am wrong) then I am extremely concerned as an interpreter, because this will be another attempt to de-professionalize our jobs and make them look more like the legal secretary who can work anywhere, and less like the attorneys who can only practice in the state (or states) where they are members of the state bar. Sure, I understand that state-level agencies will praise the “benefits” of this solution, which in reality will solve their own problem (not the interpreters’ or the foreign language speakers’): Compliance with Title VI of the Civil Rights Act. This is a state-level priority because states that do not comply will lose federal money.

I am also worried as an attorney for several reasons: First, states will allow interpreting services across state lines using telecommunications. This could be an interstate commerce issue where the federal government has to participate (at least); but the second reason is the one that motivated me to write this post: interpreters who do not know the legal system of a particular state will practice in that jurisdiction. They may physically be in the state where they are certified, but their services will affect a court system, and litigants in another state where they have never demonstrated their capacity to practice. I believe attorneys who represent foreign speakers need to be aware of this potential “solution” so that from the beginning they know that perhaps the case could later be appealed for ineffective assistance of the interpreter. Attorneys need to know that when they are advising their client on an assault charge in their home state, they may be using the services of an interpreter from a state where assault really means battery. Lawyers will need to assess the potential procedural complications in case they sue the interpreter. Jurisdiction will have to be determined, and these lawsuits could end up in federal court.

If this “program” has also been planned for civil cases, then the problem is worse. Remember, there are at least three different civil legal systems in the United States, the one followed by those states who have a system based on the Anglo-Saxon tradition, those whose system comes in part from the days where these territories were part of the Spanish Crown (just think divorce and community property division) and then Louisiana and the Napoleonic written system. As an attorney, or a foreign language speaker, I would not want to have an interpreter from another state, much less one from a state where the system is different.

I sure hope that this “solution” (if conceived as I understood it) is discarded and the states look for better options such as a higher fee for those interpreting in state courts. There are very good and capable interpreters everywhere in the United States, it is just that they will not work for the fees currently offered. A more attractive fee would also encourage others who would like to join the profession but are reluctant because of the lack of money to even make a decent living.

By the way, these problems apply to those languages where there is no certification and the interpreters are registered or qualified to work in court by a particular state.

I really wish I am mistaken and this is not happening in the United States, but if it is, I will continue to watch the developments of this program, and if needed, I will speak up in legal forums to bring awareness of the potential risks generated by using state-level certified interpreters in places where they have never been certified. I now ask you to share your thoughts, and concerns, about this potential change that would end up rendering a state-level court interpreter certification useless.

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§ 17 Responses to State court interpreter certifications could turn meaningless.

  • André Csihás says:

    Hello, Tony!

    Although I have not yet received such an e-mail but shudder at the prospect, I do agree with you wholeheartedly, as I too think this might set a less-than-desirable precedent at state-level court interpretation.

    As you so well put it, laws vary from state to state and just because someone is licensed in ONE of the states, doesn’t mean he/she is licensed in ALL of the states. State certification is NOT A BLANKET CERTIFICATION valid in every state and I think they’re attempting to equate it with the Federal Court Certification which is a completely different matter.

    I can already hear complaints by attorneys in cases being thrown out because “…the interpreter was not certified in this state”.
    Perish the thought!

    André Csihás, FCCI

  • Dear Mr. Rosado, You are absolutely right! I’m appalled that the NCSC would consider this to the detriment of all clients! Thank you for letting interpreters know about this. I’m retired and no long actively working as a federal interpreter, but I give CE courses in Texas and FL for all interpreters. Please keep us updated on that or to whom we can send letters against this idea. Thanks again

  • Noraydaii says:

    Great post. Very valid concern. Indeed. One other simple “solution” to this new potential Pandora’s box of problems is to limit remote interpreting services to certified interpreters within the same state and never go across state lines. Of course, even from one jurisdiction to the next neighboring one in the same state there are variations in legal concepts and procedures. It would seem to me that the “program” would do well to develop a database of terminology, a bilingual glossary of sorts, of legal concepts as they are used in different jurisdictions within each of the states that interpreters could access and with it hope to provide the most accurate renderings possible at any given time. It would be no small undertaking but it would be well worth it to ensure due process and minimize the disaster scenarios you suggested. Your other recommendation of increasing compensation for interpreters is also a good one so as to not have to resort to remote video interpreting as often. Keep up the good work! I look forward to hearing more from you as this story unfolds…

  • Kathleen M. Morris says:

    I totally agree with Tony’s article. The assumed “benefits” of interstate
    telephonic interpretation are far overshadowed by the confusion and bars to real communication that it can give rise to (already borne out in a few court systems that have experimented with telephonic interpretation).

    To Tony’s observations, I would like to add the following comments: In any court setting where an LLP individual’s life, liberty, and property issues are being decided, he or she should be provided with an in-person, state certified interpreter. Important nuances in speech will inevitably be lost in telephonic interpretation. This is because the interpreter does not have a visual, frontal image of the LLP party being interpreted for. The sound quality is often marginal, at best, further compromising accuracy and completeness. Add to this that the telephonic interpreter is not privy to the facial expressions (hence emotions of) the speaker,and would not be able to perceive lip movement and other important non-verbal cues. This, in turn, can
    significantly compromise accurate communication. If something sounds too good to be true, it usually is!

  • I agree. Speaking as someone who lives in Chicago but works and is certified in Wisconsin, I have encountered the differences between the judicial systems in both states and believe 100% that one should only interpret in the state they are certified in. Names of charges, classification of crimes, government entities, procedures, and wording vary between states. Part of certification, I believe, is being familiar with all of these things in order to interpret them correctly, and to interpret them quickly enough. This system is great as long as people take the time to educate themselves and get certified for additional states, thus being able to interpret there remotely.

  • Luigi says:

    Indeed, the threat of de-professionalization is growing in all areas of interpreting and we will have to be vigilant. Sharing information, as you have in this post, is important. Thank you.

  • Heaven forbid that those smugly feeding at the trough run the risk of being trampled by >gasp< competition! –libertariantranslator.com

  • As a former state and federal interpreter in the State of California (now working in the UK), I have to disagree. That is probably because of the languages I interpret. I work in two languages that are not considered common in the USA, French and Hebrew. During my working life, one often came across lone witnesses or offenders in places where one would not expect to find speakers of these languages and provision had to be made for them. In the case of Spanish speakers, it is unlikely that out-of-state interpreters would be used because there are so many interpreters in that language combination. The arrangement is merely to attempt to provide some sort of representation (or the taking of a witness statement) when the state itself cannot provide an interpreter in that language. Since an attorney is always present by law, it is up to the attorney to assist the interpreter in the legal matters.

  • Mr. Rosado, I would very much like to see the email from NCSC you are referring to here. I concur with your observations and those of our colleagues here that there are many pitfalls to such an arrangement.

    Could you please post it in the comments section, please?

    –Chris Corsbie, Clear Word Interpreting, Austin, Texas, USA

  • Paula Arturo says:

    Great post! As a lawyer-linguist, I know for a fact just how detrimental interpreters can be when they are not familiar with the legal system. I don’t practice law in the US, but if I did, I would share every single one of these concerns.

  • Daniel Weinfeld says:

    Tony:
    I might be wrong on this. From what I know an English company has been trying to sell interpreting services to the government by providing economical phone service to the courts. The main problem is that they pay not by the day, or by the hour, but by the minute. For that reason, many courts are accepting their services. For us interpreters that means that we must be available whenever we are summoned, but if there is a cancellation, we don’t work, therefore we don’t get paid for our time. Currently most interpreters are not earning a living income, but a survival income, which is quite different. How many can take a two week long vacation without pay?
    Many will leave the profession if it becomes unprofitable. Add that to the fact that even the best interpreters are not qualified to cover any and all states, and you have a problem of major proportions looming in the near future.

    Daniel Weinfeld FCCI

  • Anthony T. Rivas says:

    Dear Mr. Rosado. This follows the capitalistic trend in the United States, to wit, financials are paramount and quality takes a back seat. I agree with you, and you need support. Please feel free to contact me. Anthony T. Rivas, US/CA/FL Certified Court Interpreter, ATA Certified Translator. AIIC A/A

  • Dwight says:

    A very interesting article. Here in Connecticut we require state registration for ASL Interpreters (For all work, not just courts). We face a similar problem in that the hospitals are hooked on Video Remote Interpreting (VRI) because it is less expensive.

    We did successfully get the Office of Protection and Advocacy for persons with disabilities to rule that a VRI interpreter, no matter where they are based, must still register with the state in order to proved services here.

    Now the issue becomes educating the patients and clients to ask to see their CT registration card before interpreting proceeds.

    Dwight D. Godwin, NIC

  • Chica says:

    Tony, telephonic interpreting is already happening in MN. The pay is ridiculous. They pay by the minute. I don’t even think there is a minimum. They use it in areas where there might not be interpreters within a 30 minute distance, but these are places where we all used to be happy to travel to interpret. They claim that they can’t wait for an intepret to drive from the cities when they are 2 hours away, however, many times defendants are waiting at a courthouse for longer periods than that just to talk to their public defenders. It’s not about not being able to wait, it’s all about money, about paying interpreters less than they were paying them 15 years ago. That’s what it all boils down to.

  • Dear Tony,

    I do agree completely with your concerns and those expressed by our other colleagues. But just to be the devil’s advocate, I would like for us to consider a couple of points that we may have to address if we are to take this further:

    • Are state certification tests different from state to state? I do know that Orientation requirements vary from state to state as do CE requirements.
    • Interpreters interpret the spoken words not the law itself so the attorneys would be the ones that would either call it battery and assault or assault and menacing as stated in your example.

    Naturally the more familiar we are with the legal terminology of our state, the better the rendition but we all know the gross underestimation of the linguistic and cognitive skills needed to actually do an adequate job at interpreting in court.

    In Texas we do have the Texas Court Remote Interpreter Service (TCRIS) which was launched and made available to our courts on January 7, 2014. Its purpose; to provide telephonic and videoconference interpretation free of charge in all types of cases to District, and County level courts during short, non evidentiary hearings that are 30 minutes or less in duration. Although we were told by the OCA that this service was to provide qualified interpretation services in remote areas, all courts were notified and received detailed instructions on how to use the service. Texas interpreters were initially very concerned but as time passed we realized that our courts really preferred to use their own interpreters even though this service is free of charge. This is not to say that as technology improves things may not change but for now our courts found the program limited.

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