Is this practice demeaning to certified court interpreters?
February 26, 2015 § 10 Comments
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.
Your best allies are the budget people.
In Oregon we calculated what court room time actually costs, including everything: judge and staff salaries, fringe benefits, electricity, janitorial services, security, water, heat, air conditioning, absolutely everything!!
Laid out like that it was easy to convince the legislature that it made absolutely no sense to swear in already-certified interpreters each and every time they appeared in court to interpret.
I believe that federal interpreters such as myself, have an individual duty and responsibility to keep themselves active and at the top of their profession by constantly reading relevant material and honing their skills independently, without any agency having to tell them to do it on a regular basis. I also believe that we must exercise a level of maturity and professional responsibility to our livelihood by engaging in the furtherance of our endeavors. This is particularly important because as we well know those Federally Certified Court Interpreter’s (FCCI) credentials were nothing short of a herculean task to acquire!
Those who don’t do it and can’t cut the mustard, will surely eliminate themselves in due time and by their own hand because more than likely they will not be called back and woe those who are not called back or not wanted at federal court!
Insofar as treatment to the interpreters, both state and federal, I must say that we don’t really have those issues in our county. I speak of firsthand experience because I’ve performed in both, and I have always been treated with the greatest respect by judges, counselors, bailiffs and even the security guards at the courthouse gates so I have nothing but the highest praise for every one of them. Of course, occasionally there’s someone who thinks that I’m a stand-ins for a legal dictionary to be used at their whim but they are soon corrected and they soon learn, so all in all and much to my delight, I haven’t had those problems.
Also, I can’t think of a single interpreter within our group who’s ever experienced anything resembling “second-class treatment”. Additionally, those of us who are also state certified, do take the 8 hours of Continued Education mandated by the state so we are up to snuff as far as ethics is concerned.
Our treatment on both sides of the spectrum by all has been never less than stellar, so we are glad and proud to exercise our profession, to help each other out when the need arises and to always deliver a top quality product. My colleagues are my friends and my family.
That has got to be the berries!
André Csihás, FCCI
I meant to write “stand-in”
Court interpreters are officers of the court, no doubt. However, due to the fact that often non-certified interpreters are called and allowed to interpret, since it is ultimately the judge’s decision, the oath is required.
We need to advocate more to remove this common clause that allows a judge to determine who will interpret, if a certified court interpreter is available. When only certified interpreters are allowed to interpret, there will be no need for the oath to be repeated over and over.
This is an old practice that goes back to the days when individuals were called from the audience to interpret.
Thank you a great article.
I’m a UK Court Interpreter and legal interpreting trainer. I do understand the points made in the original article and it has given me food for thought but I actually really like taking the Oath every time. I feel it shows my experience, knowledge and authority of my role in front of everyone in the court room, including the jury, the defendant/s and their families.
In the UK, courts often see poor interpreting, and inexperienced interpreters who have no idea of the court system. When I take the stand at the beginning of the cause, the manner in which I take my Oath and how i introduce myself makes it 100% crystal clear that I have a lot of experience in this domain. I often see relief sweep across the faces of the judge and other legal advocates when they know they have got an experienced legal interpreter on the case.
Setting my authority also makes for being treated with respect and as a valued member of the process rather than as second class.
Gloria Ogborn (UK)
To me, it’s not an issue of it being demeaning. It’s a problem of being annoying to do it so many times a day, and the inconsistencies from one courtroom to another and one court to another. Some of the oaths they use make me very uncomfortable because I feel like I am being somewhat untruthful while swearing to do something I cannot promise to do. An example is when they use the same oath for me as an interpreter that they use for witnesses, asking me to swear to tell the truth, the whole truth and nothing but the truth. As an interpreter, I am saying whatever is being said, whether it is the truth or the biggest lie on the planet earth. I cannot in any way know if what I am saying is the truth. I can only know I am saying what the person I am interpreting for is saying. Another example is when their oath says something to the effect that I am swearing to interpret “word for word” or “verbatim” what is being said. Yet a third example (and this one should NEVER occur, but often does) is when I am asked to swear to obey by the interpreters’ code of ethics and then the same court is asking me to do things, such as not repeating certain things that they do not want the defendant to hear, even though they are being said in open court, explain things to a defendant by lowering the register (which I have tried to explain to judges and attorneys is their job, not mine, because I am not a lawyer or judge and cannot explain legal concepts in any other way than that which they have used), etc. Some courts send me a written oath ahead of time before every case — if they schedule me for five cases, they send me five identical oaths and ask me to scan it and email it back to them five times (they could have sent it once and copied it five times, but they haven’t thought of that). Others put me under oath once, years ago, and never did so again. Others put me under oath many times a day. There is no consistency as to putting interpreters under oath and no uniformity as to what that oath should say.
I agree with Izabel as to the origins and reason for the practice, and with Gloria that it can be made into an opportunity to strike a good impression from the get-go. However, as Lois has said, when it comes down to the money being saved, and if certified interpreters only are being used, then the oath could be kept on file, much the way it is with the attorneys after they enter the bar. Like Tony, to me the practice of swearing in the interpreter before each hearing seems excessive and even an expression of suspicion against the interpreter, that the court would find it necessary to insist she swear to do her job professionally each and every time. But as long as poorly credentialed “interpreters” are still being used some of the time, the justification is there.
For a court of record where appeals are a possibility, I think it’s more relevant when the judge asks the interpreter to say her or his name for the record, and then also confirms the interpreter’s certification status for the record. That information is more readily checked than an anonymous affirmation of good intentions.
Like Leslie I have also been presented with some unacceptable wordings. I will generally say something like “Your Honor, I agree, with the exception of the word “literal” because a literal interpretation is not always a good one.” I’ve only had one judge be offended at that. If the clerk tries to use the wrong oath, for instance, the witness oath that requires you to swear to tell the truth, I say “Your Honor, the interpreter has no way of knowing whether the things she interprets are the truth or not” and then generally the judge will ask the clerk to find the correct oath to administer, or else make up a more appropriate one on the spot.
Being ordered by the judge to do something in direct contradiction to one’s professional ethics is a sticky wicket. Generally I think the same approach can be employed. “Your Honor, my professional ethics do not allow me to put things in my own words for the witness.”
Thank you for opening my eyes. The oath did not bother me before, but now I’m a little mad. Not really. But I now see this as demeaning for certified interpreters, just not on purpose. I really do not think the court administrators have given it any thought. I hadn’t after all.
As far as the oath making me look more professional, I would think that the practice of only making non-certified interpreters take the oath would make me appear more professional when I do not have to do it. I do not claim to be on par with attorneys and judges. But I am a professional and a court official. That should be recognized and respected. Is the oath I took when I became certified not valid? Why are we required to take it then?
Further to my previous response, I just want to mention that here in the UK there is no such thing as a “certified/sworn court interpreter”* (see below), which is why I accept that I need to take the Oath each time I interpret.
Nonetheless my point still stands. I see so many interpreters that struggle to articulate the complex sentence structure of the Interpreters’ Oath and it makes it *so* obvious that they have never interpreted in court before, or that they are not experienced in the domain. I know my Oath off by heart and never look at the card and my posture, demeanour and confidence tells the court (including the defendant and the jury) that I have experience. I also try to replicate the language and mannerisms of the lawyers which is a lot more formal here in the UK than it is in the US. I find that the court officials will usually fall in with my needs and requirements – as opposed to telling me where to stand, etc.
*The only regulation for court interpreters in the UK is that we must be qualified and NRCPD Registered (National Register of Communication Professions with Deaf and Deafblind people).
Gloria Ogborn (UK)
I have renounced both my Federal (AOUSC) and CA court interpreter certifications (Spanish) because I refuse to be complicit with a corrupt judiciary that has for all intents & purposes legalized torture, legalized kidnappings, legalized financial fraud, legalized war crimes, legalized massive surveillance of absolutely everyone & everything, a legalized system of privately run Prisons-For-Profit, legalized market data manipulation, legalized highway robbery (aka Civil Asset Forfeitures), legalized secret FISA courts that issue legalized secret warrants, legalized police brutality, legalized drone bombings of children playing soccer on some beach 7422 miles away from here, legalized military invasions of foreign nations based on false pretenses & fabricated evidence, legalized benefits for illegal immigrants, legalized & purposeful dumbing-down of the entire national educational system, legalized usury, legalized bail-outs of failed private corporations at public expense, a completely corrupt judiciary operating a two-tier ‘justice’ system, legalized assassinations of 16 year old U.S. citizens with no judicial review whatsoever (i.e. Abdulrahman al-Awlaki), a completely corrupt legislative arm, a completely corrupt & ineffectual president who seems to believe he possesses dictatorial powers, a completely corrupt and subservient newsmedia that only reports what it is told/allowed to report, legalized blacklists, legalized censorship, complete elimination of Constitutional Rule of Law and legalized forcing of the population into buying worthless overpriced “healthcare” plans practically at gunpoint.