Some judges foster the use of non-certified interpreters.

December 9, 2013 § 6 Comments

Dear colleagues:

Unfortunately this topic is not new to anyone. It seems like we have been listening to the same complaint for many years, but during the past few months I have heard and read enough disturbing stories to decide that it was my time to contribute my two cents to the defense of our colleagues:  the real professional court interpreters. Before I continue, I must clarify that this posting refers to Spanish language court interpreters.  I recognize that interpreters in other languages are in a different situation as they do not have a federal certification program in the United States.  That is an issue for a separate blog post.

I learned that there are federal district courts in the Southern and Midwestern States where the federal court interpreter certification is not “required” to interpret a hearing or even a trial.  I was told that there may be other federal courts elsewhere in the United States where they also follow this practice.  I have to confess that I have been very lucky to live and work in places where this has never been an issue. In fact, I live in a city where I have never even met non-certified court interpreters.  The Federal Court for the Northern District of Illinois provides federally certified court interpreters for all of its cases.

The most common complaints that I have heard from certified interpreters is that these courthouses have clerks, administrators, and judges who don’t see the need to hire federally certified interpreters because they think they are too expensive, it is too difficult to get them, or because they are happy with the services provided by non-certified individuals who have been providing their “services” to these judges.    There is a federal district courthouse in the Midwest that hires one certified and one non-certified interpreter to work their trials.  Fortunately, most certified interpreters refuse to work under these circumstances. Unfortunately, this courthouse then hires two non-certified individuals. Their argument is that it is cheaper and the non-certified individual has a state court interpreter certification.  Another courthouse in the South routinely hires non-certified interpreters under the explanation that their judges like these non-certified individuals who have been doing “a good job” for many years.  There is a federal district court judge who states on the record at the beginning of a hearing that the Spanish speaker is being assisted by a certified interpreter, without giving opportunity to the federally certified court interpreter to enter her appearance on the record by clearly stating that she is federally certified.  This way the judge, intentionally or unintentionally (we don’t know) makes it impossible for the certified interpreter to separate herself from the non-certified individual.  In fact, because of this maneuver, I heard that some attorneys that have appeared before this judge for many years are shocked when they learn out of court that the “other” individuals appearing in court are non-certified.

I would like to think that most of these situations arise from the lack of knowledge among judges and court staff.  Many of them do not know the difference between a federally certified court interpreter (the ones who can appear in court) a state certified court interpreter, and non-certified individuals who just happen to accept assignments knowing that they are not supposed to.

For the benefit of some of you who might be reading this article, and with the hope that some of my colleagues may share the following information with judges, clerks, attorneys and others, I will touch upon some of the basic differences between a federally certified court interpreter and a state certified interpreter.

According to the Court Interpreter Act, the Administrative Office of the United States Courts shall establish a program to facilitate the use of certified interpreters in judicial proceedings instituted by the United States (28 USC § 1827) To fulfill this mandate, the United States AOC has developed a certification program that all Spanish interpreter candidates must pass to be certified. The certification program is administered in two parts: a written exam to test the true bilingualism of the applicant who has to pass (with a minimum score of 80) each of the two sections: English and Spanish. Those who pass this first stage must wait for a full year and then take the oral exam that consists of difficult exercises to test the examinee’s interpretation skills, legal terminology and comprehension, and language proficiency.  To pass this test a candidate must score a minimum of 80 on each of its 5 sections: sight translations from English into Spanish and Spanish into English, two simultaneous interpretations at very high speeds: one a monologue and one a dialog, and a lengthy and complicated consecutive interpretation.  Passing rates for this very difficult exam are among the lowest in any professional field.

A person can become state certified after meeting the requirements of that particular state. The format and minimum scores vary depending on the state. Some require a written test, others do not. Some offer a written test on the basics of the legal process, others require prove of bilingualism.  The oral test can be the same in different states as they all use the services of the National Center for State Courts (NCSC) but the way the test is administered and graded is different from state to state. Some states let the applicant take the oral exam by parts (first the simultaneous exam and maybe months later the consecutive and sight)

Of the many differences between the federal certification program and the states’ programs, perhaps the most important are the content of the exam and the minimum scores required to pass it.  State exams have fewer sections than the federal test. They do not have a simultaneous interpretation dialogue, the simultaneous interpretation exercise is offered at a lower speed, the sight translation documents are not legal, but paralegal documents, and the subject matter of the exercises is based on topics that are under the jurisdiction of a state court.  The minimum score to pass a state certification exam is 70.  Some states allow that examinees retest only on those sections where they got a failing score.  The passing rate for the state court interpreter examination is far higher than the federal rate.  In fact, there are many state certified court interpreters who have repeatedly failed the written and oral federal certification examination.  As you can see, there is a significant difference between these certifications.  It is important to mention that for federal court purposes a state certified interpreter is a non-certified interpreter.

The federal court interpreter program exists because of a constitutional mandate. The VI Amendment of the United States Constitution states that: “In all criminal prosecutions, the accused shall enjoy the right to… be informed of the nature and cause of the accusation; to be confronted with the witnesses against him… and to have the Assistance of Counsel for his defense…”  (Amendment VI. 1791)

The Court Interpreter Act clearly states that: “…Only in a case in which no certified interpreter is reasonably available as provided in subsection (d) of this section, including a case in which certification of interpreters is not provided under paragraph (1) in a particular language, may the services of otherwise qualified interpreters be used…”  [28 USC § 1827(b)(2)]

Looking at the statute you can easily conclude that the courts are obligated to seek the services of federally certified interpreters.  There were certified interpreters ready and able to work in all the cases I have mentioned in this article.  It was the clerk or the judge who preferred to use the non-certified individuals.

Even smaller federal district courts now have access to federally certified court interpreters through the federal judiciary’s Telephone Interpreting Program (TIP)  The TIP, available nationwide, allows an interpreter at a remote location to deliver simultaneous interpretation of court proceedings for defendants and consecutive interpreting for the court record by means of a two-line telephone connection.  This program has been very successful and has kept the highest quality of interpretation in the courtroom.

It seems to me that after reading this posting, all federally certified court interpreters who are ignored or passed over by a courthouse, and later find out that a non-certified individual has been hired to “interpret,” should be able to explain the legal reasons not to do so.  Unfortunately, sometimes this may not be enough. All federal judicial districts are independent. They make their own decisions. All federal district court judges are appointed for life.    When an explanation is not enough to change a bad habit, there are other means to achieve the desired results.

When faced with the situation above, the interpreter should talk to the defense attorney and express his concerns about the defendant’s constitutional rights being violated. The V amendment indicates that: “No person shall… be deprived of life, liberty, or property, without due process of law…” (Amendment V. 1791) For a person to have due process there has to be legal representation. A defendant cannot participate in his defense unless he understands the charges against him and confronts his accusers. This is impossible if he cannot communicate with his attorney (See Amendment VI 1791 above)  It is important to make it clear to the defense attorney that because of this violation of the defendant’s constitutional right to a due process, there are grounds for a dismissal, or at the least for an appeal, even before the trial takes place.

As far as the non-certified individual who is working at the courthouse, even with the blessing of a judge, there are several things that can be done: When the individual states that he is certified, or when the judge states on the record that this person is certified and the “interpreter” does not correct the record, there can be consequences if this person has a state certification.  This should be brought to the attention of the state agency that oversees the performance of state certified interpreters. This lack of moral character could be grounds for a suspension or even a revocation of the state certification. Remember, state certified court interpreters are (state level) officers of the court.

There are also certain things to be done when the individual does not have a state certification. If at the beginning of the hearing, or at any time during the process, this person was placed under oath or affirmation and indicated that he was certified, or even if he remained silent when the judge or the clerk put him under oath as a certified interpreter, he may have committed perjury or at least misrepresentation and therefore he could be prosecuted for this crime.   This individual could also be subject to other sanctions depending on the state where the act was perpetrated.  Practicing a profession without a license or certification could be a misdemeanor in some states. The person may be subject to jail time or at the least to a fine.

Finally, the non-English speaker defendant or his dependants may be able to sue the “interpreter” for damages caused by him as an individual who provided a service without having the certification to do so, and perhaps committing fraud or inducing the error at the time of celebration of the professional services contract. If the non-English speaker thought that this individual was certified, there was no “meeting of the minds” and therefore the contract wasn’t valid; this means that he can sue the “interpreter” for damages and he may not have to pay him for what he did. This is a good remedy for those who appear in court pro-se.

There are many resources to right a wrong. The first step should be to try to educate the bench and bar. I encourage you to speak before the defense bar and the assistant U.S. attorneys. Make sure the court knows that all these resources exist; that they can use TIP.  Always remember: you need to make sure they are aware that you know what is required, and that they know that you are willing to campaign for the use of certified interpreters in your district.  Please share with the rest of us your experiences with non-certified interpreters and what you did to fix the situation in your federal district court.

Interpreting at the Immigration Court: Is it really headed for disaster?

February 4, 2013 § 18 Comments

Dear colleagues:

Last year a colleague contacted me asking for advice.  She works as an independent contractor interpreter with the Executive Office of Immigration Review (EOIR) in the United States. This government agency is better known as the immigration court.  Before I get into the subject matter of this article, let me say a few things that we need to consider as the background of the situation I will describe on the next paragraph: (1) The immigration court is an administrative court. It is not part of the federal judiciary like district court or the court of appeals. It has no link to the U.S. Supreme Court. Its link is to the President of the United States through the Department of Justice. Its judges are administrative law judges appointed by the executive branch. They do not have life tenure nor need to be approved by the Senate as judicial branch judges do. (2) Immigration courts do not hear criminal cases. All cases are civil. Any criminal violation of the immigration laws (illegal reentry, alien smuggling, etc.) are heard by federal district court judges, not immigration judges. (3) There is no constitutional right to an attorney in immigration proceedings because immigration violations are not criminal in nature. For this reason the person accused of the violation is called the respondent and not the defendant. (4) All interpretation services in immigration court are provided by in-house staff interpreters who work for the EOIR, or by an interpretation agency that has a nationwide exclusive contract with the EOIR. This agency’s schedulers assign cases to the independent contractors on their lists, the independent interpreters submit their invoices to this agency, and the agency pays them, not the EOIR. (5) I know many interpreters and agency schedulers who work and have worked in immigration court.  Some of these interpreters, staff, agency supervisors are my friends, and every now and then I have interpreted in immigration court in many parts of the United States as an independent contractor.

It turns out that according to my colleague, by October 1 of last year, the beginning of the federal fiscal year, all immigration proceedings were supposed to be interpreted simultaneously using interpretation equipment. Until now most immigration hearings have been interpreted consecutively without equipment, and the interpretation has been done selectively, meaning that not everything has been interpreted to the respondent. Basically, the only parts of the hearing that are interpreted to the respondent are those when the judge and attorneys address him directly.  I know that by now you are thinking that simultaneous interpretation of the full proceeding is how court interpretation is done every day not just at the federal level, but at the state and local level as well. So, what is the big deal? The difference is that in immigration court, until now, they have been hiring many people who have never interpreted simultaneously.  Moreover, my colleague told me that this simultaneous interpretation was going to be conducted by a single interpreter regardless of the duration of the hearing. No team interpreting under any circumstances.  She also told me that they had contacted the agency but nothing good had come from that communication, except that they were told that they could learn simultaneous interpretation from an on-line tutorial the agency had posted on its “contractors-only” website and that if they ever needed a break they could ask the judge for a recess.  Once she explained their predicament, I thought of a possible solution to the problem.

I must say that between the time I spoke with my colleague and now, and (I believe) mainly because of the pressure applied by most reputable interpreter organizations in the United States, lead by the National Association of Judiciary Interpreters and Translators (NAJIT) The EOIR and the translation agency that hires the independent contractor interpreters have decided not to implement simultaneous interpretation at this time.

I have nothing against the agency that has the contract to provide interpretation services for the EOIR. In fact, I respect what they do: As a business, they are doing exactly what they have to do to profit for their shareholders while at the same time fulfilling the terms of their contract. Also, like I said, I know many interpreters who work in immigration court and some of them are good interpreters, and many more are dedicated and hard-working people; However, the reality is that when many interpreters think of immigration court the first thing that comes to mind is that it is in the hands of an agency that pays very little, demands minimum quality from its interpreters, takes a long time to pay, cancels assignments, and hires many of those interpreters who were not able to work anywhere else.

I have worked in immigration court in different parts of the country and unfortunately, in some ways, this idea is not far from the truth. The agency got this contract, by far the largest interpretation contract with the federal government, bidding a low-cost interpretation service and guaranteeing coverage in all required languages, even the most exotic ones. To fulfill this obligation they developed a program that encompasses a very good business model where they recruit people locally, subject them to a very basic interpretation test, run a security and work-eligibility background check, and provide some entry-level materials on-line. They also hire hard-working administrative staff that rounds up the interpreters at the local level as they are needed and schedules them. The agency has a group of independent contractors, most of them drawn from the same interpreter recruitment system, who have separated themselves from the rest and, after a basic training by the agency, have been willing to become quality-control supervisors of their peers at the local level. Finally, the program includes an interpreter payment system that is lower and less flexible than everything else in the market: No cancelation fees, no parking reimbursement, for many interpreters there is no minimum or a negligible minimum guarantee, a punch-clock system to pay the interpreter, penalties for not having the payment form stamped at the time required (even if the interpreter was already in the facility) and others.  Of course, the EOIR loved the system as a warm body is always standing next to the respondent, the contractor interpreter conveys the basic information to the alien, and the budgetary cost is very low (although I could not find out how much the EOIR pays the agency for each case interpreted.)

It is very difficult to hire so many interpreters, particularly in some of the less common languages. It would definitely be very expensive for the EOIR to attempt to hire all of these interpreters at the local level using a staff interpreter or a clerk. It would also be extremely hard to provide interpretation services at a minimum quality level in some of these languages or areas of the United States.  Maybe the agency system is not the only solution but it is the best. To raise the quality of the interpretation the agency must get these interpreters to do simultaneous interpretation and has to provide the service with two interpreters working together even if it is very hard to find two interpreters to work as a team, particularly in some languages.

As I was arriving to these conclusions it hit me: The federal court system (USAOC) is fulfilling the same needs with higher quality interpretation services, it is doing it at the local level, and it is doing it without an agency as an intermediary. This means that it can be done in immigration court! Then I thought, the federal court system requires of many interpreters every day, but not as many as immigration court where practically all cases require an interpreter. How would the small town get their interpreters for those respondents who speak less common languages? The answer came to me: There are NO immigration courts in any small towns in America. They are all in the largest urban areas and the border towns. It would not be difficult to get interpreters after all. I believe that immigration courts should follow the same procedure as the federal judiciary (and for that matter almost all of the state and local court systems in the country) For the most common languages where there are plenty of interpreters, they should implement and enforce a certification system like the federal court interpreter certification examination where the potential interpreter has to take and pass a very difficult exam before he or she can work in court.  For the other languages they could follow the same criteria used by the federal judiciary to determine who is qualified to work and who is not.  By simply implementing this change, if they pay the same as the judiciary using a half a day and full day fee system, the EOIR would have all federally certified and qualified court interpreters ready to work at a level never seen before in these courts before. This would also include the team interpreting system widely known, accepted, and used at the federal level.  Those presently working through the agency would need to get certified or qualified (depending on the language pair) which means that the good ones would have a higher income and by becoming certified or qualified interpreters, they would also have access to other markets such as the federal and state court systems. Other than waiting for the contract with the interpretation agency to expire, or finding a cost-effective way for an early termination, I see no reason to continue with the intermediary system anymore, unless the agency renegotiates its contract with the EOIR and changes its protocol demanding interpreters meet the same minimum requirements needed to work in the federal court system and pays accordingly. This would probably satisfy everybody without having to get rid of any of the current players.

In the meantime, I suggest these dedicated and hard-working individuals who are presently working in immigration court, and are not certified, start working on improving their skills, getting certified, and while the problem is permanently solved, I invite them to talk directly to the EOIR, and if necessary, to take their case to the media before they have a situation similar to what happened in Great Britain when another agency took over the interpreting services. I also suggest that until the team interpreter standard is adopted, they should take as many breaks as needed when working a long hearing alone, explaining to the judge that they are requesting the break because that type of hearing should be interpreted as a team. If you work as an immigration court interpreter, carry NAJIT position papers with you and give them to judges and attorneys, become members of NAJIT, ATA, and other local professional organizations, go to the annual conferences and present your case to the rest of the interpreter community, the agency does it all the time by getting their staff to present at these conferences. By doing so, you will begin to change the interpreters’ community perception that almost nobody wants to work where you are working. I invite the rest of you to brainstorm, and avoiding postings that contain nothing but complaints, to write down your suggestions so that our immigration interpreter friends and colleagues get what they need and deserve.

Update: on February 11, 2013 EOIR Chief Judge Brian M. O’Leary issued a memo ordering the implementation of simultaneous complete interpretation of all court proceedings without team interpreting. This order will be effective on May 1, 2013.

The ten worst things a judge can do to a court interpreter.

November 30, 2012 § 32 Comments

Dear colleagues:

I know that just the title of this article made you think of a myriad of things that go on in a courthouse that seem to be designed to make the life of the interpreter miserable.  Believe me, you are not alone. For this reason, I decided to compile some of the most infamous ones and share them with all of you. Keep in mind that I will focus on the judge, intentionally leaving the attorney’s worst 10, clerk’s worst 10, witness worst 10, and so forth for future articles.  I am writing this with a therapeutic perspective, trying to add some possible solutions to these problems while at the same time creating empathy and inviting a good healthy laugh when relating to these horror stories.

Here we go:

1.       Please ask him his date of birth.”  Those judges who insist to address the parties on the third person despite what they have been told over and over again.  A quick solution would be to “ignore” the judge and simply interpret on the first person even if “Your Honor” doesn’t. Long term solution: Talk to the judge over and over again. Organize a presentation for all judges and hope these judges show.

2.       Why do we need two interpreters?  We only have one court reporter.”  Those judges who think that a bilingual individual should be able to effortlessly interpret a difficult proceeding on their own, since we are “”just talking after all,” a good short term solution is to have the chief interpreter or his equivalent go to the judge (ideally with the two working interpreters) and explain the reasons why this is needed, assuring the judge that there is a budget for this “inconvenience.”  For a long term solution you can provide some team interpreting literature to the court , and maybe “arrange” a meeting with other judges who understand the team interpreting concept.

3.       Just have a seat. I will take care of the private attorney cases first because they are busy.”   For those state judges who need votes to keep their jobs and want the private bar on their side, a good short term solution could be to talk to the clerk and explain that you are needed somewhere else. Many “nice” clerks will help the interpreter.  A more durable solution would be to meet with the administration and point out the waste of resources caused by an interpreter sitting in a courtroom for hours doing nothing.

4.       When you cannot hear the judge. When the judge whispers or speaks away from the microphone making it impossible to hear what she said. We all know that drama in the court is part of the “showmanship” influence of the media, but we simply cannot interpret what we can’t hear. For a quick fix interrupt the hearing and politely ask the judge to speak louder and into the microphone. Of course, we all know that this request will only be honored for a few seconds, so the lasting solution has to be smarter; maybe getting the court reporter on board as she is probably having the same difficulties, or maybe drafting the IT people as your allies in those courthouses where the hearings are recorded.

5.       “Sorry Mr. Interpreter but we already did the case because the defendant’s spouse speaks English.”   It is getting better, but not everywhere.  You may want to establish a system with the clerk where she does not give the file to the judge unless the interpreter is in the courtroom. Another solution could be to involve the attorneys and explain to them the risk of an appeal for lack of a certified interpreter. Be creative, sometimes it works.

6.       “Would the interpreter stay still and speak lower? You are distracting my jury.”   I was asked once to “speak as lithe as possible.”  You should ask for a sidebar with all parties involved and explain how in order to interpret you need to talk. Maybe suggest the “distracted” juror moves to another seat, and maybe point out to the defense the fact that a “distracted” juror may not be who the parties want to have deciding the faith of their client.  Just a mere thought.

7.       “Why do we need you to interpret?  He’s been in the country for 20 years.”  Sometimes I ask myself that same question, however, the fact is that when the person does not speak English, he has the right to an interpreter. Maybe you can answer the judges question by saying, very politely though, that it is because he does not speak English.  The long-term solution to this problem is non-existent with this particular judge. For the rest, an orientation by the Bar, the court administration, or the local interpreters’ association may prove to be valuable.

8.       “Do not interpret consecutively. We need to get going and you just got new equipment.”   This usually happens during testimony. A way to overcome this obstacle is to explain how the jury needs to hear and understand the answers, and it will be quite difficult for them to hear an answer if both, interpreter and witness are speaking at the same time from the stand. Of course, despite of what some colleagues think, some simultaneous interpretation equipment for the members of the jury would cure this problem,

9.       What do you need the file and jury instructions for? It is a waste of paper”.  I know thie second part of the quote is unthinkable in some states, but trust me, it happened to me some years ago.  To overcome the ruling of this “ecologist” judge, you should ask the court administration or chief interpreter  to get you those materials in advance.  AS a back-up plan, try to get the prosecution and/or defense to understand the need for these documents. However, no matter how difficult or scary, never give up. Do not settle for a trial without a file and jury instructions. You would be setting the profession back!

10.   “I think you can settle parts of this claim, so use the interpreters during lunch.”  This awful judge just put you on a tough spot. You are an officer of the court so you need to perform, however, nobody can work without a break, even if we are “just talking.” Solve this situation by asking for the chief interpreter’s help. He or she should be the one solving this problem. Maybe a second team can work the conference room while you rest, have lunch and get ready to come back for the formal hearing in the afternoon.

This is only the tip of the iceberg. Please review these “ten worst” and if you are up to it, I would love to read your top ten, top five, or even top one.  This should be good…

What is the New Court Interpreter to do after the Certification?

June 28, 2012 § 1 Comment

Dear Colleagues:

Every month people get certified as court interpreters somewhere in the United States.  We all see the news reports stating that there is a shortage of court interpreters in the country, and yet, many of these newly-certified professionals do not know what to do, where to go, how to get started in their careers.

A well-known scenario is that of the new interpreter who goes to the courthouse looking for work and he is “front-desked” by all regular, “veteran” interpreters who already work there, fear the new-blood competition, and do their best to discourage the newly certified colleague with the hope that he or she will move on to another courthouse somewhere else.

Another everyday situation is that of the new interpreter who goes to the programmer, chief interpreter, administrator, or whatever other title she may have. The interpreter is greeted and welcomed because they need him, but the person in charge is from another time, a time when courts used to hire people not fully qualified to foster new interpreters. The result is that this new, potentially good, court interpreter learns from the worst available role models. Pretty soon the talent goes to waste as these new interpreters are exposed to all the defective practices that their supervisors endorse. Sadly, this interpreter will now join the ranks of those bad, allergic to study court interpreters who will spend the rest of their lives living from paycheck to paycheck without ever advancing their professional career.  A lot of talent gets wasted this way!

Some of us who have been around for some time in this profession are constantly trying to help these new interpreters (in courthouses, hospitals, booths, etc.) but there are not enough of us willing to help, capable of doing so, and with time to do it. That is why I decided to write a manual: “The New Professional Court Interpreter” that addresses all of these practical situations that are not taught in school.  My manual is very concise, extremely user-friendly, and it was put together with the idea of creating something useful to all new interpreters, regardless of their language pair. I know that this manual will benefit the new court interpreter who wants to work every day as a court interpreter; but I also know that it will help the part-time interpreter who will interpret during the summer, or those who can only work sporadically because of their language combination.  In fact, because “The New Professional Court Interpreter” covers ethical issues, research and case preparation tips, and protocol while in a courtroom depending on the type of court, this publication will be very useful to those practicing interpreters who occasionally work other type of hearings: administrative, civil, immigration, etcetera.

The manual has a practical focus; it is designed to help the interpreter with the everyday tasks of being a person who makes a living interpreting in court, and leaves all theory and technical issues for another day, a day that supposedly already happened in the lives of those who already achieved certification.  I invite you to purchase the book.  You can order it from Amazon, from Creatspace, or directly from my website by leaving a message with your information.  To order through Amazon go to this link: http://www.amazon.com/The-New-Professional-Court-Interpreter/dp/1477556966/ref=sr_1_1?s=books&ie=UTF8&qid=1340884792&sr=1-1&keywords=the+new+professional+court+interpreter

I ask you to visit the websites, get the book, and share your thoughts about the topic in this space.

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