Lack of understanding, common sense = constitutional conflict in court?

Dear colleagues:

I recently learned that some federal district courts got involved in the way federal prosecutors pick their interpreters for hearings. I have practiced in federal court for many years, and the decision on who will interpret for the office of the United States Attorney has always been left to the prosecutors who know the case better than anybody else. This means they, and their prosecutorial team of paralegals, investigators, detectives, and law enforcement agents, know the language complexities of a particular case, and therefore, better equipped to decide who they need for that interpreting assignment.

I do not dispute that some districts, because of a lack of federally certified court interpreters, or out of plain ignorance, have never tried a case where the assistant U.S. attorneys (AUSA) have their own interpreters for a trial. Some districts are so small, the AUSA office does not even have a staff interpreter. Some districts are so remote, that even the court tries cases with unqualified court interpreters (usually certified or accredited at the state level) because it is next to impossible to get somebody to the courthouse. Evidentiary hearings and trials require that an interpreter be physically present at the hearing. Remote interpreting is not a viable option for these proceedings.

That some have always followed this practice does not make it right, and courts in districts in urban centers where federally certified court interpreters are available have no reason to inject themselves in what should be an internal process of the Department of Justice. Let me elaborate:

The American legal system, and all legitimate legal systems in the world, are based on an independent judiciary free to decide with no pressures or fear of retaliation. The United States Constitution recognizes and enshrines this principle through the separation of powers. The Executive Branch of the federal government originates from Article 2. The Judicial Branch stems from Article 3.

With administration of justice in a criminal case, all individuals in the United States have the rights and protections established by the Constitution and secondary legislation; mainly, the right to a public and fair trial by their peers, starting with a presumption of innocence, charging the Executive Branch of government, through the United States Department of Justice, with the burden of proof, beyond reasonable doubt, in an orderly regulated process, presided by and controlled by the Judicial Branch of government. To put it simply: Because the government cannot be judge and party, it is an agency from outside the Judicial Branch, in this case the Justice Department, who prosecutes the case on behalf of the U.S. government, including the citizens that the government must protect from the bad guys.

We can see that having the burden of proof is no small task. Federal prosecutors must investigate de facts, test and evaluate the evidence found, and prepare a case that will persuade the jury and judge of an individuals’ guilt beyond reasonable doubt. If successful, the Justice Department will meet its duty to protect society. This is no easy task; it also means that individuals will lose their assets, their freedom, and even their life.  A prosecutorial team must have the best team available to fulfill its function, and that is extremely difficult.

Federal prosecutors must call witnesses to testify in the trial. When these witnesses do not speak English, their testimony must be interpreted into English to benefit the defendant, the defense attorneys, the judge, and the jury. It is only then, after the rendition of the interpretation, that the defendant will have exercised his constitutional right to confront the witness or accuser. It only after the rendition that a judge or jury can assess the credibility of the witness. It is this time they will decide if they believe all, part, or nothing of the witness’ statement.

But most of the work is done before the witness steps in the courtroom and takes the stand. Prosecutors and their teams test, evaluate, and prepare their witnesses before a trial. Questions are asked many times, in many ways; adjustments are made. Not to influence testimony, but to present the truth clearly to the trier of fact (judge or jury). Usually the testimony of the witnesses for the prosecution is very complex, specialized, scientific. Dense concepts and sophisticated terminology must be interpreted into English during the trial; cultural concepts must be clarified before the final rendition (many expert witnesses come from abroad just for the trial); legal systems compared so the accurate term in the target language is rendered by the interpreter. Leaving loose ends is not an option: The prosecution must prove, and the standard could not be any higher: beyond reasonable doubt. Prosecutors and their teams, assisted by the interpreters, go over the testimony with every witness as many times as needed. These interpreters must research, study, practice, develop a common glossary for each testimony. The witness gets used to that team of interpreters and the interpreters get used to the witness.

The interpreters for the prosecution know the case, they are familiar with names, dates, places, and other key information that must be interpreted with accuracy. From gang slang, to amounts of drugs, to family relationships. It all needs to be well-understood so the interpretation heard in trial is accurate, pristine, and truthful.

Confidentiality is essential to our justice system. It lets the parties tell the truth to their attorneys so they can represent, in a criminal case, a defendant or society with full knowledge of the facts. Confidentiality is also very important when it comes to the lawyers’ strategy. Prosecutors and defense attorneys develop a strategy to win a case. The interpreters for the prosecution know the strategy and facts, and they are covered by the veil of secrecy. Using a court appointed interpreter to interpret for the prosecution generates a conflict of interest. You cannot be judge and party simultaneously. Even the most professional, trustworthy interpreters should never be placed in such situation. The sole appearance of conflict is enough to cast a shadow on the proceedings. Client-attorney privilege only exists when there is an expectation of privacy. How could this be argued when the same interpreter hears all confidential details?

The independence of the prosecutorial interpreters is so important, that even their payment differs from that court appointed, public defender, and Criminal Justice Act (CJA) attorney interpreters receive.  I am not referring to staff interpreters, I am talking about independent contractors retained to work in a case. While interpreters for the court, public defender, and CJA attorneys are paid through the judicial system (Judicial Branch of government) interpreters for the prosecution are paid by the United States Department of Justice (Executive Branch). The funds come from different budgets to assure independence, absence of conflict of interests, and separation of powers. The Office of the United States Attorney pays better that the courts, and unlike the latter, fees are negotiable between the parties (interpreters and AUSAs). This can also be relevant if you think that most more experienced, better trained interpreters would rather work for the prosecution, leaving a smaller pool of top-level interpreters to work for the courts, and increasing the risk of an inaccurate rendition of a prosecutorial witness’ complex testimony during the trial.

The widely, and constitutionally backed, practice of having a separate interpreter team for the prosecution in federal cases must continue as long as we have separation of powers, and a system where one party has the burden of proof. There is no rational justification for this practice by the executive branch of government, to be changed by court staff, from a different branch. Such decisions are being made in courthouses where none of the issues above were given any thought, where prosecutors did not reflect on the implications of such changes, and a decision was unilaterally made, perhaps due to a lack of understanding that lead to this policy deprived of common sense. If the decision at these district courts was made unilaterally, we have a separation of powers issue; if it was decided for monetary reasons, remember that interpreter fees are paid from two budgets (executive and judiciary); if it was decided to avoid comparisons between experienced prosecutorial interpreters, and perhaps less qualified court appointed ones, it was motivated by unethical reasons and it shows a disappointing level of professionalism; and if this was a joint decision by the courts and AUSAs in some districts, they must address the conflict of interest and at the least the appearance of conflict.

Our legal system has been around for 250 years. It has organically adjusted its parts to observe the fundamental democratic principles, starting with an independent judiciary, a separation of powers, and the rights and protections to the individual and society. In today’s world where many things that were, are no longer, let’s hope this is not changed by the capricious decision of a few. I invite you to share your thoughts on this issue.

What makes a good interpreter?

Dear colleagues:

Often when we attend a social event and start a conversation with people we do not know, but know about our profession, we are asked what makes a good interpreter. I know there are many answers to this question; all have value and are probably right. In my case, after being asked the same innumerable times throughout the years, in my personal and professional opinion, three things make a good interpreter.

First, the interpreter must be able to communicate concepts from a source language into a target language.  Webster tells us that an interpreter is one who translates orally for parties in different languages. The main goal is to make sure that a concept was conveyed in such a manner that the person receiving the information, who does not understand the language of the speaker, gets everything those who speak the main speaker’s language got.

To achieve this, the interpreter must understand what is being said in the source language, synthesize what was said, and orally convey it to the receiver with proper grammar and vocabulary in the target language, so it can be understood. Good interpreters “clean” the message so unnecessary words that may sound strange in the target language are eliminated. The good interpreter interprets the “meat” and gets rid of the “fat”. (I know this does not apply to some community interpreting, particularity to court interpreting where everything must be interpreted. This is a global answer, thinking of conference interpreting).  The good interpreter must understand, synthesize, and have command of grammar, culture, and vocabulary.

Second, a good interpreter must have a pleasant delivery that everybody understands. Good voice, décalage, volume, rhythm, pace. Listeners must be so comfortable they forget about the voice in their ear and concentrate in the speech. Voice modulation, clarity, enunciation, are a very important part of a rendition. Heavy breathing, coughing, slurping, rushing through the speech, and chasing speakers too close to what they just said make you look bad, even when you are a good interpreter.

Finally, my third attribute of the good interpreter is team work. The good interpreter lives in a conflict-free environment. They support their colleagues in the booth, are fair, and will go the extra mile to save a rendition. Often, a good interpreter who gets along with others is more desirable than a great interpreter who creates conflict everywhere. Do not misunderstand this attribute of a good interpreter. I never said that an interpreter willing to work more for less, or one who accepts deplorable work conditions, or a low fee are good interpreters. They are not. Easy going differs from easy to fool.

There you have it. To me a good interpreter then, is one who understands a concept, digests it, and conveys it to the client in a pleasant clear voice, so it can be understood by the foreign language speaker; and does it all while being a dedicated professional, good colleague, and decent human.

I now invite you to share with the rest of us your idea of a good interpreter.

When you have to choose between 2 good clients or assignments.

Dear Colleagues:

Interpreters have to make work-related choices on a daily basis: from the word that best conveys the message in the target language, to the subject matter we are willing to interpret, to the work conditions we agree to. All decisions are very important for our professional development and lifestyle, but today I want to talk about another decision that all interpreters, especially freelancers, have to make every now and then.

We all know that the work of the interpreter goes beyond what people notice when they see us in the booth, the courtroom, boardroom, or hospital. We have to set aside time to study, prepare for an event, travel, and perform administrative duties. Most people do not see us while we are taking care of these activities, which are time-consuming and essential to our work. These aspects of our profession, however, allow some flexibility. Unlike real-time interpreting which needs to happen when the conference, court hearing, or business meeting take place, all other duties can be fulfilled whenever we decide to do them: weekends, nighttime, and so on. They rarely create a conflict in our work schedule.

As interpreters we all know that there is an “unwritten rule” that says that you can go without an assignment for some time, but when a very good one comes your way, another one, as good as the first one will follow shortly, often on the same dates. We can be available four days in a week, but the two good assignments will require of your services on the same three days. Most of you can relate to this dilemma, and those who cannot… just wait a few years and you will.

Deciding which one of these assignments you will have to turn down is one of the most difficult things we face as interpreters, especially when both clients are good, loyal companies or individuals who have had a long professional relationship with you. And it gets more painful when you particularly like the assignments, when you have enjoyed doing them in the past, and when they pay really well. To complicate things even more, it is common to take a job just to get another offer for one that pays even better a few minutes later. My question is: What should we do when this happens?

I recently faced this situation twice: I agreed to do a very prestigious and interesting conference and a few days later I was asked to do a sports interpreting assignment that I truly enjoy; the only problem: they were on the same dates.  A few weeks later, I was already preparing for a conference when I was asked to do another event on the same dates at a beautiful beach resort.

The logical thing is to turn down the second offer, and that is exactly what I did on both occasions, but it really hurt.  I agonized over these decisions not just because the second assignment was something I love to do in the first case, or because it was in a place I enjoy visiting in the second case. The decision was complicated because these were all good clients who count on me for these events.  The concern of losing the client was more important than missing the assignment.

There are times when you have to take the risk of upsetting the client, even after you do everything you can to explain the reasons why you cannot say yes to the job, but you can do certain things to minimize the damage and to keep the client whose assignment you are turning down: My rule is that when this happens, I talk to the client who requested my services second, I explain to them that it is not personal, that I truly enjoy working with them, and that I will be there for them when the next one comes around. I offer to help in every way I can, short of interpreting, to make sure they have a successful event. I even refer them to some trusted capable colleagues who I know will do a great job and will not try to “steal” the client. Depending on the circumstances, I may even provide the interpreters who will subcontract with me. All these points are explained to the client, and they usually agree.

However, there are times when after assessing the two assignments, I opt for the second event, and do the same I explained above, but for the first, original client. I rarely do this, but I do it when the subject matter, location of the assignments, and other factors lead me to believe that both clients will be better served if I physically work the second event. Many times the original client agrees, the services are top notch at both assignments, and I get to keep both clients happy. Of course, I would not even dare to attempt this option with a client I know may get upset or feel abandoned by me if I were to propose different interpreters after I already told them I would personally do the job. You need to know your clients very well before you do something like this.

In those cases when neither client agrees to a “Plan B”, and they both demand that I physically interpret the event, I had to make the always tough choice of deciding which client I rather keep. If I concluded that the second client was more valuable to me in the long run, I have graciously declined the first assignment, provided that I was not exposing myself to civil liability, and never doing it at the very last minute. That is the life of a freelancer.

Years ago, when I did more court interpreting, I would sometimes double-book myself in cases when I knew that the chances of a case going to trial were very slim. I would let the second client know that there was a small chance that I would not do the job myself because of that potential trial, and that if that happened, I would provide other trusted and capable professional interpreters to cover the event for me. As those of you who regularly work in court know, the trial almost never happened, and I did not lose work. The courthouse did not need to know because my commitment to the trial was absolute; in other words, if there was a trial, I would be there, no question about it. I now ask you to share with the rest of us your thoughts and experiences when presented with this situation, and please tell us how you dealt with this problem.