Is this practice demeaning to certified court interpreters?

Dear colleagues:

In the United States and other jurisdictions interpreters are officers of the court. From the moment interpreters begin to work in court, they hear the term thrown around all the time. They are told that much is expected from them as officers of the court, and at the same time they see how annoyed some court employees get when an interpreter is part of a hearing.

One of the least pleasurable things about court interpreting is the need to endure uncomfortable attitudes, and absurd policies, by many clerks, support staff, attorneys, court administrators, and even judges. This environment has turned off many excellent interpreters, and deprived non-native speakers of the benefit of some of the most capable and professional individuals.

Court interpreting presents many unavoidable challenges to the professional interpreter, and they have to be dealt with in order to reach the goal of equal access to justice: lay and legal terminology, evasive speakers who at best reluctantly tell the truth, poor acoustics, obsolete interpreting equipment or the lack of it, long hours, and low pay, are some of the realities that court interpreters face every day at work. Most of them cannot be fixed by a bigger budget or more competent court administrators; they are part of the “nature of the beast.” Let’s face it: many people do not go to court voluntarily, some appear before a judge or jury when they are angry, scared, embarrassed, and a good number of them have trouble with telling the truth. Court interpreting is very hard; but not all of its difficulties are due to bad acoustics, a whispering attorney, or a fast-speaking witness. Some of them are generated artificially, they do not belong in the courthouse; they are the result of ignorance and lack of understanding.

When the spirit of justice and the passion for the law are no longer there, many of the top interpreters abandon the field. Being ignored by the clerk, patronized by the judge, criticized by the attorney, and to constantly walk into an environment where the interpreter often feels like he is more of an obstacle to the process than an essential part of the administration of justice, seems to outweigh the low and rarely timely pay. We all know, and have accepted or rejected these circumstances; many are trying to change them through education or negotiating their labor conditions, and many freelance interpreters have relocated their court work from the top of their priority list to the middle and even to the bottom.

The question is my friends: Are we really officers of the court? The legislation says we are, but, what does it mean to be an officer of the court? According to Black’s: an officer of the court is “a person who is charged with upholding the law and administering the judicial system. Typically, officer of the court refers to a judge, clerk, bailiff, sheriff, or the like…” it adds that an officer of the court “…is obliged to obey court rules and… owes a duty of candor to the court…” Interpreters fall into this category as one of “the like”. This has been widely recognized by most state legislations, and it is explained by the United States’ National Association of Judiciary Interpreters and Translators (NAJIT) position paper on the interpreter’s scope of practice: “…By virtue of the role we play in the administration of justice, many courts have stated outright that the interpreter is an officer of the court…” To put it in lay terms: court interpreters are officers of the court because they are part of the judicial system to administer justice, and as such, they are subject to strict professional and ethical rules, and to specific legislation. There is no doubt that especially, certified court interpreters are strictly regulated as professionals: they need to go through a certification or licensing process that culminates with passing a rigorous exam, in most cases (sadly, not the federal program) they must meet continuing education requirements to keep said certification or license, and they have to abide by a code of ethics and professional responsibility. It could be argued that noncertified court interpreters may not fit the description as they do not have to meet all the requirements above. However, even noncertified court interpreters must observe the rules of ethics when working in a court-related case.

So, where is the demeaning practice I mentioned at the top of this post? It is at the time that certified court interpreters are placed under oath over and over again, every day, all over the United States.

To practice their profession, all officers of the court are subject to eligibility requirements: judges, attorneys, and certified court interpreters have to meet them to work in the system. All officers of the court have the duty to obey the law, and the responsibility to act ethically and professionally. For this reason, all of them are required to take an oath: judges take the oath when they are appointed or elected to the bench, attorneys are administered an oath after they pass the bar exam, court clerks take an oath when they are hired by the judiciary. They all take the oath once!

In some states, and in some United States judicial districts, certified court interpreters are only required to take their oath once (for that jurisdiction) and a record is kept in file for future reference. This is a great practice not only because it saves taxpayers money by shortening the hearings, and the savings can be a significant in cases when the same certified court interpreter is administered the oath, in the same courtroom, over ten times in one day. Equally important, from the certified court interpreters’ perspective, is the recognition of their status as officers of the court, and the very important message by the system that certified court interpreters are going to be treated as the professionals that they are.

Unfortunately, to eradicate this demeaning practice that places certified court interpreters as second class officers of the court, we will need more than just educating judges and attorneys, convincing court administrators, and pushing interpreter coordinators who work for the courts so they stand up and support the freelance certified court interpreters on this one. It will require a legislative change in many cases. Believe it or not, there is legislation in some states requiring that interpreters be placed under oath before each court proceeding.

A 2012 decision by the United States Court of Appeals for the Ninth Circuit (U.S. v. Solorio) held interpreters who translate the testimony of witnesses on the stand are covered by Federal Rule of Evidence 604 and that they are subject to “…the administration of an oath or affirmation to make a true translation…” However, the Appeals Court ruled that “…Rule 604 does not…indicate whether such an oath must be administered in any particular manner or at any specified time, including whether the oath must be administered for each trial. The Administrative Office of the United States Courts (AO) has published guidelines on the administration of oath to interpreters, observing that policies in regard to the oath of interpreters vary from district to district and from judge to judge [Guide to Judiciary Policy §350(b)] Although some courts administer oaths to interpreters each day, or once for an entire case, others administer the oath to staff and contract interpreters once, and keep it on file…”

The legal argument above can be used by certified court interpreters to advance their efforts to get rid of this “second-class treatment” by some courts, but the road will not be easy, and in some cases, the biggest obstacle will be bilingual judges in positions of authority who do not quite understand the role of the interpreter as that of an officer of the court. Judge Ruben Castillo, as co-chair of the American Bar Association (ABA) Section of Litigation’s Trial Practice Committee, and presently the Chief Judge for the United States Northern District of Illinois, favors administering the oath for each case, stating that: “…I happen to be a Spanish speaker, and I’ve seen misrepresentations occur…under the pressure of instantaneous interpretation, especially in cases involving a lot of slang…mistakes can occur. When under oath, most people take the job more seriously…” As you can see, devaluating the certified court interpreter’s professionalism is also used to continue this demeaning practice. It is obvious that judges need to be educated to the professional status of the certified court interpreter. The oath does nothing to improve an interpreter’s skills, but it does a lot to show us that there is a long way to go before we can sit at the table as equals in many jurisdictions. I can see a need to place under oath noncertified or occasional interpreters (not all languages have enough demand to generate a professional practice) but certified court interpreters should be treated as all other officers of the court whose professional scope of practice goes beyond that of a witness.

I now invite you to share your thoughts on this matter.

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