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

November 12, 2018 § 1 Comment

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.

The interpreter’s frustration of not being understood.

June 4, 2013 § 12 Comments

Dear colleagues:

Today I decided to write about something we all feel, or at least have felt at some point during our career.  I am fortunate to have clients who hire me for assignments that are interesting, relevant, and professionally challenging. I get the topic, prepare, and execute my job to the best of my ability, and  often during an event, I get stopped on a hallway by a person who recognizes me as the interpreter and congratulates me for the rendition or thanks me for my work. Interesting work, good working conditions, and excellent pay are key to a successful career, but that type of appreciation by those you just interpreted for (not by your peers or the agency programmer) is what keeps me going.  That is my motivation to better myself every time I turn on the microphone in that booth.  It is a pleasure to interpret for an audience and see how they are assimilating every word I interpret, how my job is making it worth for them to attend the conference, to listen to the presentation. When I am working I know that people are listening and understanding what I say. That is very rewarding.

Just like many of you, I have also worked in court for many years, and when I do, most of the time the experience is the opposite. When I am retained for a court proceeding I also prepare for my work, develop glossaries, learn the details of the case, and research the relevant legal aspects; however, as I begin to interpret a trial or a hearing, I soon realize that in most cases the defendant or whomever I am interpreting for does not understand what is happening. The purpose of this posting is not to underline the differences between these two kinds of clients; we all know that is a factor, I am not writing this article to talk about attorneys who do not explain the proceedings to their clients either. I am writing this posting to talk about the frustration that comes to you as an interpreter when you realize that after all the preparation and all the hard work, at the end of a two-hour hearing the defendant turns to you and asks you: “what did the judge say?”  Once a colleague told me that the difference between conference and court interpreting was that in conference interpreting you prepare so that your audience understands your interpretation, and in court interpretation you prepare so that the other interpreter who is working the trial with you understands your interpretation, because she is the only one in the courtroom who will.  That may be true.

My question to all of you is a complex one: How do you deal with the frustration that comes from knowing that those you are interpreting for do not, and will not, understand what you are saying, not because of a poor rendition, but because of their level of education?  I am not looking for the legal answer that it is because of the constitutional principle of equal access to the law. I do not want the philosophical argument that it is the fair thing to do to serve justice.  I don’t even want to hear that it is because we are interpreting for the record and not the defendant and our rendition is provided in case there is an appeal, and please do not take the easy way out by telling me that you are never frustrated when this happens.  What I would like to read is your personal way to deal with this very human feeling of frustration of knowing that all your work will not be appreciated, that many times you could be there reciting a nursery rhyme instead of interpreting the hearing and the person you are interpreting for wouldn’t even notice.  In my particular case, I do the best job I can because of me.  I owe it to myself. It is my commitment to my own professional and moral standards to prepare and provide the best interpretation I am capable of.  The owner of the ears that will hear me is irrelevant to my motivation to be the best.  Of course I enjoy the praising that goes on when I interpret at a conference or diplomatic event, but I don’t let that be my motivation to excel. If I do, I would have a difficult time interpreting for those who I know will not understand and I cannot let that happen. Please tell us how you deal with this frustration.

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