Are court interpreters talking to the wrong client?

Dear Colleagues:

As I was having dinner with a colleague several weeks ago in New York City, the conversation turned to the deplorable state of court interpreting at the State level in many parts of the United States and even at some federal district courts. She shared some frustrating stories about court staff choosing less qualified and even non-certified interpreters over solid and skilled certified colleagues just to save money by paying less for court interpreting services.

Her story was not different from the many tales I have learned from interpreters around the country complaining about poorly-run Administrative Offices of the Courts in several States, courthouses led by unreasonable interpreter coordinators, and ignorant government officials who have never bothered to learn anything about interpreting but are too willing to issue directives diminishing the quality of interpreting services and undercutting the fees and contractual guarantees that court interpreters fought so hard to get.

Time and again, there seems to be a common denominator to all this nonsense: These government officials, court administrators, and even short-sighted staff interpreters turned court policy backers, simply ignore interpreters’ arguments and explanations of all the reasons why justice would be better served, Constitutional requirements would actually be met, and interpreters would move the courts to the top of their client lists, if the State courts, and some federal districts, were to treat the profession and those who practice it with the dignity they deserve.

I often wonder how many times interpreters will meet with judges, staff interpreters, and court administrators, to explain that a professional fee, a fair cancellation policy, and appropriate interpreting conditions are needed, before we all realize that we are just wasting our time and energy.

I believe that the moment has arrived.  In the past, whenever I felt that I was getting nowhere with a stubborn judge or an incompetent court administrator, I took my case to the officer of the court who will truly understand and appreciate our services: The private attorney.

I have found it very productive to talk to civil litigants and private defense attorneys one on one. I have seen the impact of a good presentation by an interpreter at a State Bar conference, in front of hundreds of lawyers.  I believe that it is the attorneys who need to hear about the profession. They are the ones who need to know how interpreters are really treated by state officials, and they need to hear some of the horror stories that unfortunately have occurred all over the country when a bad interpretation has been part of a court proceeding.

Court interpreters need to address these lawyers for two reasons: First, since they are not under the authority and policy of court administrators because they are financially independent, they will be able to fight for quality interpreters. They will see it our way because they are also in the business of delivering results to their clients. In other words: no result equals no clients. Moreover, many of their clients are financially capable of paying the interpreter’s professional fees and expenses, and like everything else in the private sector, they know that good things are not cheap.

The second reason for approaching these attorneys is evident: Our work will speak louder than our words. The attorneys and their clients will see how professional interpreters work, they will see the benefits of having a great interpreter at all stages of a case: from the time the client retains the attorney to the end of a case, including strategy meetings, witness preparation sessions, jailhouse visits, and having an interpreter at the plaintiff’s or defense’s table during the trial.  They will see the difference and their client will tell them how the work of the privately retained professional interpreter is infinitely better than the rendition the client will hear from the less expensive interpreters provided by the court at the hearings.  You see, instead of wasting your time talking to the wall, you will invest your time at cultivating professional relationships with these private attorneys who will appreciate your work, treat you like the professional you are, and pay you a much better fee. You will be able to make more money and work less. Who knows? Maybe after all good interpreters leave the courts and cases are overturned on appeal the people who have ignored us will decide to approach us in our terms.

I decided to work with the private bar and I do not regret it at all. In fact, I enjoy being a part of a case from beginning to end instead of just being thrown in there in the middle of a trial without knowing what the case is about. In fact, just a couple of weeks ago one of my attorney clients commented to me that she was so glad to have me as her interpreter because she felt that because I was not in court working with the same judges and attorneys all the time, she could trust me more than “those interpreters who are at the courthouse all the time”.

I suggest that if you are sick and tired of being mistreated and ignored by the courts, you switch gears and give the private bar a try. All you will need is four or five good cases a year to live and feel like the true professional you are. I now ask you to tell us what you think about the way that so many courts treat professional interpreters and what you plan to do about it.

This time of the year could be very dangerous for some court interpreters.

Dear Colleagues:

I just read a contract that one of the States in the U.S. is asking all court interpreters to sign if they want to continue to work in their system. The document is 38 pages long and it is full of legal terminology, rules, and sanctions that only an attorney can understand.  This is not an isolated case. Because of political pressure and budgetary prioritization, court interpreter programs are getting less money from their administrative offices at the state level. In other words: There is hardly any money to pay for interpreting services at the state level in many states.

Although the Civil Rights Act is over fifty years old, it was only a few years ago that the federal government decided to enforce its compliance at the state level in the case of equal access to the administration of justice, regardless of the language spoken by the user of the service.  When the federal government came knocking on the door of each of the fifty states, and told their state judiciary to comply with the law or lose the funds they had been getting from the feds, states started to look for a solution to this problem. In reality, up to that moment, the states were complying with the constitutional requirement to provide court interpreters in criminal cases, but in many states there were no court-funded court interpreters available for civil cases and other additional services offered by the courts to the English-speaking population.  The message from Washington, D.C. was loud and clear: In order to continue to receive (much needed) federal funds, the states had to provide interpreters for all services they offered, not just criminal cases.

In some parts of the country the first problem was as simple as this: There were not enough certified court interpreters to meet the legal requirements; in other regions the problem was slightly different: There were plenty of certified interpreters, but the courts were not willing to pay the professional fees commanded by these (for the most part) top-notch interpreters in that state.  These professionals had been there for years, but due to the low fees paid by the state court system, they were not even considering the state judiciary as a prospective client.

When faced with this dilemma, a logical and ethical option should have been to develop a program to encourage more young people to become certified court interpreters, train them, and then test them to see if they could meet the state-level certification requirements, set years before and universally accepted as the minimum requirements to do a decent court interpreting job.  Some states’ needs could be met this way, but not all of them. For that reason, a second logical step would have been to raise the professional fees paid to court interpreters in order to entice those top-notch interpreters, who were not working for the courts, by making the assignment profitable and attractive. Finally, for those places where this was not enough, state courts could have used modern technology and provide interpreting services by video or teleconference. Administrative offices had to develop a plan, categorize the services offered and decide which ones required of an experienced certified court interpreter, find the ones that a brand new certified court interpreter could provide, and select those instances that, because of their nature and relevance, could be covered remotely by a certified court interpreter elsewhere in the state or even somewhere else.  This process also needed that state court judges and officials acted within the constitutional system and asked their respective legislatures for the funds to comply with the federal mandate.  It is doubtful that legislatures would risk losing federal funds by not approving such monies; and in those cases where the local legislators would not grant more funds, state court administrators and chief judges needed to do their job, and truly provide equal access to justice to all by reorganizing priorities, and perhaps sacrificing some programs, even those that were near and dear to a judge’s heart, in order to find the funds needed to meet this priority that is above most others, not just because of the federal funds that the state would lose in the event of non-compliance, but because those in charge of the judiciary should consider equal access to justice a top priority, and I really mean at the very top.

Unfortunately, my dear friends and colleagues, most states chose an easier way, even though it did not deliver what the Civil Rights Act intended.  They decided not to rock the boat with the legislature and play it safe, they decided not to make true equal access to justice a priority by recruiting and training quality certified court interpreters, instead, they opted for ignoring the excellent professionals in their area by not raising interpreter fees, thus making the assignments profitable to professional interpreters. They decided to come up with a “plan” to keep the federal money in their accounts by making believe that they were complying with the federal mandate of equal access to justice. This is what many of the states decided to do:

Instead of recruiting and training new certified court interpreters, they decided to create a group of paraprofessionals who would “deliver” interpreting services. These individuals were drafted from the ranks of those who had always failed the certification exams, and by recruiting bilingual individuals with no interpreting knowledge whatsoever. States justified their decision by arguing that these individuals would receive the necessary “training” to interpret in certain scenarios of lesser importance, where people who had partially passed the certification test would be considered as professionally qualified (semantics vary from state to state but it is basically the same) even though in the real world they should be deemed as unfit to do the job. Moreover, bilinguals would be trained to “assist” non-English speakers with some administrative matters in the courthouse. Of course, this brilliant decision would set the profession back to the good old days when prevailing judicial culture was that knowing two languages was all you needed to interpret in court; but that was of little importance when balanced against the possibility of cancelling a court program that was politically useful to a judge or an administrator.  This is how the “warm body next to the court services user so we don’t lose federal funds” theory was born.  The spirit of the law was ignored.

There is as much quality and true access to the administration of justice when a person who failed the court interpreter certification test, or a bilingual court staffer, interprets for a non-English speaker individual as there is medical knowledge when the guy who failed the medical board sees a hospital patient, even if the appointment is to take care of an ingrowing toenail.

Of course, the process above taught court administrators a valuable lesson: court interpreting services was a good place to save money, a wonderful way to channel budget resources somewhere else, and a great way to avoid antagonizing the state legislature, because there would be no need to ask for more money to fund the program.  This was the origin of the next step backwards: Fee reduction.

Court administrators did not stop here. They now knew that they could get away with more, so they decided to lower interpreter fees. In most cases the reduction did not come as a lowering of the fee itself; it was accomplished by cutting guaranteed hours, reducing mileage and travel reimbursement, changing cancellation policy, and by creating a new bureaucratic machinery designed to oversee what interpreters do minute-by-minute. Maybe it should be referred to as “to spy” instead of to “oversee”.

Fast forward to today, and you will find these huge interpreting services contracts in many states. The reason for them is not that court interpreters all of a sudden went bad and stopped doing the good work that they did for decades; these contracts are motivated by more reductions to the interpreters’ fees and by developing this super-protection for the state, leaving the freelancer with little or no defense before potential abuse by the court administrators.  What other justification can these state contracts have when the federal court interpreter contract is a very short agreement, which usually does not change from one fiscal year to the next, and is drafted and developed individually by every federal judicial district?

These state contracts that court interpreters are expected to sign without the slightest objection, have been drafted by the administrative office of the courts’ legal departments; they have been amended to include any possible ways to reduce the interpreters’ real fee that the states missed when drafting last year’s contract, they include sanctions to interpreters who do not comply with sometimes ridiculous duties, without setting any process of notice and hearing; they are written in a complex style full of legal terms and ambiguity that only an attorney can understand.

I am very fortunate that I do not need to sign one of these contracts, as state courts have not been my clients for several years; but it concerns me, as a defender of our profession, that my colleagues may sign these documents out of fear or hopelessness.  I invite all those court interpreters who have been, or will be asked to sign one of these agreements in the next few months, before the new fiscal year starts in July, to seek legal representation. It is your professional career, it is your future. I believe that state (and national) level professional associations should negotiate a deal with a labor relations or civil law attorney, where services would be provided at a lower fee, and offer it as a benefit to their members. In fact, I would like to see all interpreters who are members of a state or regional professional association present a common front and negotiate these contracts with the state administrator.  As state court interpreters we need protection, because if we do not act, we will continue to move backwards. They already told many of us that there is no money and they blamed it on the state legislature, now we know that perhaps they did not try to protect the interpreter program no matter what.

They are paying you less, making your work conditions very uncomfortable, they already took some of our work away and gave it to mediocre cheaper paraprofessionals.  All professionals negotiate the terms of a contract, and before they reach an agreement, they have the benefit of legal representation. The administrative office of the courts is represented by their attorneys; interpreters, like all professionals, should at least be represented by an attorney before they sign a new agreement. I now ask you to comment on this situation and the ways to recover what we had already achieved in the past, so we can move forward, and for the first time fully comply with Title VI of the Civil Rights Act.

“Get an interpreter for that hearing, and try to spend as little as possible”.

Dear colleagues:

Every time I read an article about court interpreting, look at your social media posts, or have a face to face conversation with a court interpreter, I cannot help but notice how the working conditions constantly deteriorate. For some time we have witnessed how the court interpreting system of the United Kingdom was completely destroyed and our colleagues had to courageously fight back so the rest of the world knew what had happened in their country. Time continues to run, and nothing has been done to improve that system now run by an entity whose greatest achievement was to sink the quality of interpreting services to an unimaginable low. We have witnessed the difficult times that our colleagues who want to do court interpreting face in Spain. We have heard many stories of court interpreters around the world having to fight for a professional fee, a professional work environment, and respect to the profession.

The situation in the United States is also very sad. It is true that the enforcement of Title VI of the Civil Rights Act has left little choice to the states. Now, state-level courts that want to continue to receive federal funds must provide interpreting services to all non-English speakers who need to have access to the justice system. The new demand for court interpreters beyond criminal cases has “inspired” many court administrators and chief judges to act in new and more creative ways to satisfy the requirement of having an interpreter next to the non-English speaker, even when the quality of this professional service is at best doubtful. To this day, there are jurisdictions where the question is: Does a warm body fulfill the legal requirement of providing interpreter services? Sadly, in some cases the answer seems to be “maybe”.

But the state courts want to comply with the federal mandate, and it seems that some of them will stop at nothing in order to achieve their goal. A popular formula was born: “Get an interpreter for that hearing and try to spend as little as possible”. The origin of this strategy is not clear, but it is obvious that this solution was not conceived by an interpreter. This is not even the brainchild of an administrator who at least has a basic knowledge of the interpreting profession; moreover, this doctrine has been embraced by some federal level courts as well. Let me explain.

Some court administrators have implemented a fee reduction. Today, some interpreters get paid less for their travel time to and from the place where they will render professional services; they get a lower fee, less compensation per traveled mile (kilometer elsewhere in the world) no reimbursement for tolls and bridges, and other very crafty ways that some courts have devised to pay less for interpreting services.

Other courts have increased the level of “scrutiny” and now watch over the court interpreters’ shoulder while they are doing their job; not the way a client observes the work of a doctor, a lawyer, or any professional individual, but the way a person watches over the performance of the guys who dry your car when you take it to the car wash. Many times this breathing on your neck type of scrutiny is enforced by adding paperwork and bureaucratic requirements to the fee payment process. To the interpreters, this means more time spent in the payment process, while making the same money than before the new requirements were in place. They are effectively making less money than before.

Of course there are also courts that now pay a lower fee during the contracted time if the interpreter’s lips are not moving: They pay a partial fee for the break time and travel time, even though the interpreters, who sell their time, have allocated those hours, or minutes, to that court as a client. Now some courts are tossing high fives at each other because they paid the interpreter a full fee for 45 minutes of work and a reduced fee for the 15 minutes in between cases when the interpreter did not interpret because the judge had to go to the bathroom.

And there is more: some jurisdictions have removed themselves from the payment process in those cases when, due to a possible conflict of interest, the court assigns a particular case to a private independent defense attorney, who is a member of a panel of lawyers, who can be appointed to these cases in exchange for a fee that is paid by the judiciary. This jurisdictions do not accept the interpreters’ invoices anymore; they now require the panel attorney to process the interpreter’s invoice and payment, generating two very sad effects: (1) Sometimes, the interpreter will have to wait a long time to get paid because their payment processing is not a top priority to the lawyer, and (2) It will help to keep alive the idea that interpreters are second-class officers of the court who do not deserve the court’s trust, because it is clear that these jurisdictions opted for a system where the attorney will need to access the court’s computer system to process interpreters’ payments, which is “preferable” over a system where interpreters would have to be granted that same access to the system. Why? Because it is too much of a risk to take? You can arrive to your own conclusions, but the fact is that this policy is very demeaning.

My friends, when you see and hear about all these policy changes you have to wonder: As these new strategies were discussed and adopted, where were the court staff interpreters, and the judges, and the administrators who know what interpreting is about? And once they were implemented, why did the freelancers continue to work under these terrible conditions? I now invite you to comment on this policy changes, other rules you may have noticed somewhere else, and the reason why these changes are being implemented with so little opposition.

A travesty of justice, and hope to non-English speakers, come to the Illinois judicial system at the same time.

Dear colleagues:

By now many of you heard of the Luis Pantoja case from my postings on Twitter and Facebook or from the media attention it received from printed press and TV.  This is the case of the individual charged with sexual assault on a Spanish speaker woman in Cook County Illinois (Chicago).  On cross-examination during the preliminary hearing the victim contradicted herself and it became evident to the defense attorney that she did not understand his questions. He asked her if she wanted an interpreter and she answered: “…yes. Please…”  Unfortunately, Cook County Illinois Judge Laura M. Sullivan decided against the request and simply asked the defense attorney to rephrase the question. Because of the contradictions in the testimony, obviously due to the language barrier, on September 17, 2013 this judge dismissed the charges as she found no probable cause; she also set Pantoja free.  It is puzzling that Pantoja, who is hearing-impaired, had the services of a Sign Language interpreter during the hearing.  Pantoja was arrested again on the first week of January 2014 and this time he was charged with the sexual assault of a 15-year old girl.  This time he has been held in custody on a $2.5 million bail.  This judge has been characterized in the past as “minority hater” by some publications.  At the least, her decision in this case shows a lack of judicial judgment.  Besides the public outcry against this travesty of justice, and the criticism to the judge and judicial system by Second City Cop, The Chicago Tribune, The Chicago Sun-Times, Salon Magazine, and others, the National Association of Judiciary Interpreters and Translators (NAJIT) issued a very strong opinion condemning the decisions taken by the judge, and the flawed state legislation that does not provide for an interpreter in cases when the victim or a witness speak a foreign language.  They are right. Unfortunately, nobody mentioned the other crucial aspect of the problem: There is no court interpreter certification in the state of Illinois.

Dear friends and colleagues, the state of Illinois is home to more foreign speakers than the U.S. average, and the city of Chicago is one of the most diverse cities in the world with people from all corners of the planet, and with a huge Polish and Hispanic population.  There are many more foreign language speaker cases in Cook County Illinois, the county where the city of Chicago is located, than most other judicial systems in the United States where they have implemented a court interpreter certification program.  In other words, the program does not exist where it is needed the most.  This lack of quality control has allowed that people with untested knowledge and skill work as language interpreters in this busy judicial system.  If you add to this lack of certification the extremely low pay and shocking working conditions that exist for those who provide interpretation services in Illinois, you can easily conclude that even with legislation that required interpretation services for victims and witnesses, and even with a more considerate judge presiding over this case, the chances of this victim getting accurate and professional interpretation services were very slim.

Although I live in Chicago, I do not know the state of Illinois court interpreters because in Chicago, just like in other big cities, state-level court interpreters and federally certified court interpreters do not work in the same places.  Chicago is a very international city with a great need for good capable interpreters who work its many conferences, countless professional and corporate training sessions, and the federal courts where only interpreters certified by the Administrative Office of the United States Courts can work. I still remember when I first moved to Chicago and tried to meet the Cook County Illinois court interpreters.  All I wanted to do was to let them know that I was their new neighbor. I took the telephone and called the main interpreter office.  A person answered the phone and before I could even tell him who I was, he told me that: “…well, you are an interpreter…we are not hiring anybody. We have all the people we need. Goodbye…” and he hung up on me.  I could not even tell him my name.  Frankly, after such a rude greeting I lost all desire to contact that office ever again.  Since these interpreters get paid between $15.00 and $25.00 per hour there was not even an economic incentive to try again.    Now the “hope” part of the posting.

Despite all the problems and irregularities above, the Administrative Office of the Illinois Courts is currently developing a plan to provide access to the courts to those who do not speak English as their first language.  After all these years the U.S. Justice Department decided to enforce the requirement that all individuals have access to the administration of justice.  Basically, unless the states comply with the U.S. Constitution and the Civil Rights Act of 1964 and provide language access to all people, the federal government will stop all monies it presently gives to the states.  All states that were not in full compliance, and all others who did not even have a court interpreter certification program like in the case of Illinois, had to start planning and implementing these changes.  Last week I attended a Language Access to the Courts meeting sponsored by the Illinois Judicial Branch in Chicago.

The meeting was well organized and the attendance was very good.  The State government officials in charge of developing the plan seemed capable and enthusiastic.  Of course, there were different motivations among those in attendance:  There were those state administrators who want to keep the federal funds and see this as another hoop to jump through; the interpretation agencies were there to watch over their interests and make sure they are not left out of the game.  Some educational organizations were present in hopes of being awarded an interpreter certification training contract; some others were there for no other reason than a real commitment to equal justice; and of course some interpreters were there: non-certified interpreters who went to see what is coming to them, and certified court interpreters (I include myself in this group) to make sure that our profession is not diminished by the desire to get this implemented somehow in order to keep the federal funds coming.

There were valid and important points made during the meeting. This was good. Unfortunately, there were also remarks that frankly worried me.  It is clear, and fortunately the people from the State in charge of this program know it, that these changes from now until the day when we only see certified court interpreters in the Illinois courts is far away.  It was of concern to learn how court administrators do not know where in the world some important languages are spoken, or how they refer to certain languages as “dialects,” and it is really incredible to hear a judge say that as a bilingual person, he has no problem doing the entire hearing in the foreign language instead of waiting for an interpreter to get to the courtroom; but it also lets us comprehend the magnitude of the task ahead.  I selected the term “hope” for this posting because I really hope that this change happens. I want to trust those involved in the planning and implementation of this Language Access Plan.

It is important to remember that as professional certified interpreters we have to remain vigilant so that the certification requirements are not watered down, and more importantly, that the exceptions to the certification process do not happen. At least we have to make sure that they do not happen in those languages, like Spanish, where there are plenty of capable certified interpreters who hold a federal certification or a credential from another state.  It is essential that we make sure that to continue working, those already employed by the state courts as interpreters take the certification exam and pass it.  It is necessary that we educate the public and private bar so these attorneys know the difference between a certified court interpreter and an old-timer who cannot pass the test.  We have to make sure that the interpreter fee issue is discussed as part of this program.  In a state like Illinois, particularly in a metropolitan area like Chicago’s, the courts will never get the top-tier interpreters unless they pay them accordingly.  There are just too many other places where interpreters get a professional fee that takes into account the big city lifestyle with all of its expenses. As I said, I have hope; let’s make sure that it becomes reality so that we never again have to deal with a travesty of justice like the one perpetrated in Cook County Court last September.  I invite you to share your ideas and comments on both issues: The Cook County Court horror story, or the possibility of having a real court interpreter certification program in Illinois.

Some judges foster the use of non-certified interpreters.

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.

Should Consecutive Interpretation Disappear From Court?

Dear colleagues:

Every time I write about some issue that involves consecutive interpretation in court, I get a considerable number of comments arguing for the disappearance of this mode of interpretation. Whether it is because of how difficult it is to render it, or due to some legal issue, the fact is that the number of interpreters, and courts, moving away from consecutive interpretation from the witness stand is growing every day.

Currently, there are many courthouses in the United States where the interpretation of a witness’ testimony is done consecutaneously: The attorney’s question is interpreted simultaneously by an interpreter sitting (or standing) next to the witness and the answer is rendered consecutively by the same interpreter.  Other courthouses are using one interpreter for the simultaneous interpretation of the question, with the help of interpretation equipment, and a second interpreter, sitting (or standing) next to the witness, who renders the answers consecutively. The feedback from both systems, as far as I have heard, is positive.  Apparently this approach solves the problems presented by the way cross-examination is phrased, keeps the jury focused on the witness, and not on the interpreter, and eliminates the unfair advantage that some witnesses have in cases when they speak some English, but prefer to employ the services of an interpreter,  thus having an opportunity to reflect on their answer to a question while they “listen” to the interpreter’s rendition of said question.  It is also true that this is not a “bulletproof” solution. Consecutaneous interpretation from the witness stand can be confusing to some lay witnesses; and in the case of different interpreters for questions and answers, it could present a problem when both, the question interpreter and the answer interpreter interpret correctly but using a different term.   For what I hear, judges and court administrators love consecutaneous interpretation because it saves a lot of trial time, as the time for the consecutive rendition is eliminated altogether.

I must confess that for a long time I was a “purist” who opposed consecutaneous interpretation in the courtroom. Although I still dislike consecutaneous interpretation, I have changed my mind.  Now I believe that in this world full of technology, where we go to the booth with nothing but an iPad, where we can do a word search in seconds, where we can interpret remotely from a different continent, we need to take advantage of everything that exists out there.  The technology for simultaneous interpretation of a witness testimony already exists. I dislike consecutaneous interpretation not because I want to keep the consecutive mode for the witness stand. I dislike it because I think that we interpreters deserve better, the court deserves better, and the witness deserves the best possible access to the source language: simultaneous interpretation.  Real time interpretation of everything that happens during the hearing or trial.  Let us leave consecutive interpretation where it is needed: escort interpretation, jail visits, and some aspects of medical and community interpreting.

In an era where many hearings are held with the defendant appearing remotely by video, and attorneys file their pleadings electronically, there is no excuse to keep interpreting back in the Stone Age.  There is no reason why the witness, judge, attorneys and jury cannot have access to a headset to hear in their native language the questions and answers.  The argument that it is too complicated, that these people will be distracted by the equipment, is absurd. We are talking about the same people who drove themselves to court while listening to the radio or talking to their kids on the back seat of the car. We are talking about the same people who talk and text, walk and surf the net at the same time.  Learning how to switch a button on and off is not brain surgery; moreover, they can just remove the headset when they don’t need to use it.  By the way, this would also eliminate the distraction of having the interpreter next to the witness. It would remove the distraction of the interpreter’s whispering from the courtroom as we could be working from a booth like in all other venues where we render our services, and it would ensure more accuracy as we will be able to hear everything better from the booth. Will this cost money? Yes it will. Will these changes take time? Of course they will.  It is all true, but at some point in time we have to start.  Maybe if we start now the new courthouses will be designed and built with a booth.  In new colleges and universities classrooms are built this way.  Perhaps it will be other court systems that take the first steps towards this best solution.  Many countries are switching over to the oral proceedings. They are building new courthouses. Maybe they can be the pioneers. Maybe the European courts will be the frontrunners now that they are implementing their new court interpreter system.

The point is, dear colleagues, it is clear that we need to move towards full simultaneous interpretation of all court proceedings. All that remains to be decided is when we start and where we take the first steps.  Please share your comments and opinions on this issue.